Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors

CourtOccupational Safety And Health Administration
Citation85 FR 53910
Publication Date31 August 2020
Record Number2020-18017
Federal Register, Volume 85 Issue 169 (Monday, August 31, 2020)
[Federal Register Volume 85, Number 169 (Monday, August 31, 2020)]
                [Rules and Regulations]
                [Pages 53910-53999]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-18017]
                [[Page 53909]]
                Vol. 85
                Monday,
                No. 169
                August 31, 2020
                Part II
                 Department of Labor
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                 Occupational Safety and Health Administration
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                29 CFR Parts 1915 and 1926
                Occupational Exposure to Beryllium and Beryllium Compounds in
                Construction and Shipyard Sectors; Final Rule
                Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules
                and Regulations
                [[Page 53910]]
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                DEPARTMENT OF LABOR
                Occupational Safety and Health Administration
                29 CFR Parts 1915 and 1926
                [Docket No. OSHA-H005C-2006-0870]
                RIN 1218-AD29
                Occupational Exposure to Beryllium and Beryllium Compounds in
                Construction and Shipyard Sectors
                AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
                ACTION: Final rule.
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                SUMMARY: OSHA is amending its existing construction and shipyard
                standards for occupational exposure to beryllium and beryllium
                compounds to clarify certain provisions and simplify or improve
                compliance. These changes are designed to accomplish three goals: to
                more appropriately tailor the requirements of the construction and
                shipyards standards to the particular exposures in these industries in
                light of partial overlap between the beryllium standards' requirements
                and other OSHA standards; to aid compliance and enforcement across the
                beryllium standards by avoiding inconsistency, where appropriate,
                between the shipyards and construction standards and recent revisions
                to the general industry standard; and to clarify certain requirements
                with respect to materials containing only trace amounts of beryllium.
                This final rule does not affect the general industry beryllium
                standard.
                DATES: This rule is effective September 30, 2020.
                ADDRESSES: For purposes of 28 U.S.C. 2112(a), OSHA designates Mr.
                Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety
                and Health, to receive petitions for review of the final rule. Contact
                the Associate Solicitor at the Office of the Solicitor, Room S-4004,
                U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
                20210; telephone: (202) 693-5445.
                 Copies of this Federal Register document and news releases:
                Electronic copies of these documents are available at OSHA's web page
                at https://www.osha.gov.
                FOR FURTHER INFORMATION CONTACT: Press inquiries: Mr. Frank Meilinger,
                OSHA Office of Communications; telephone: (202) 693-1999; email:
                [email protected].
                 General information and technical inquiries: Ms. Maureen Ruskin,
                Directorate of Standards and Guidance; telephone: (202) 693-1950;
                email: [email protected].
                SUPPLEMENTARY INFORMATION:
                Table of Contents
                I. Background
                II. Pertinent Legal Authority
                III. Summary and Explanation of the Final Rule
                IV. Final Economic Analysis
                V. Economic Feasibility Analysis and Regulatory Flexibility
                Certification
                VI. OMB Review Under the Paperwork Reduction Act of 1995
                VII. Federalism
                VIII. State Plans
                IX. Unfunded Mandates Reform Act
                X. Environmental Impacts
                XI. Consultation and Coordination With Indian Tribal Governments
                Authority and Signature
                I. Background
                 On January 9, 2017, OSHA published its final rule Occupational
                Exposure to Beryllium and Beryllium Compounds in the Federal Register
                (82 FR 2470). The final rule established three comprehensive health
                standards to protect workers from occupational exposure to beryllium
                and beryllium compounds in the general industry (29 CFR 1910.1024),
                construction (29 CFR 1926.1124), and shipyards (29 CFR 1915.1024)
                sectors. In the final rule, OSHA concluded that employees exposed to
                beryllium and beryllium compounds at the preceding permissible exposure
                limits (PELs) were at significant risk of material impairment of
                health, specifically chronic beryllium disease (CBD) and lung cancer.
                The agency further determined that limiting employee exposure to an 8-
                hour time-weighted average (TWA) PEL of 0.2 [micro]g/m\3\ would reduce
                this significant risk to the maximum extent feasible. Therefore, the
                2017 final rule adopted a TWA PEL of 0.2 [micro]g/m\3\. In addition to
                the revised PEL, the 2017 final rule established a new short-term
                exposure limit (STEL) of 2.0 [micro]g/m\3\ over a 15-minute sampling
                period and an action level of 0.1 [micro]g/m\3\ as an 8-hour TWA, along
                with a number of ancillary provisions intended to provide additional
                protections to employees. The ancillary provisions included
                requirements for exposure assessment, methods for controlling exposure,
                respiratory protection, personal protective clothing and equipment,
                housekeeping, medical surveillance, hazard communication, and
                recordkeeping that are similar to those found in other OSHA health
                standards. The 2017 final rule went into effect on May 20, 2017, and
                OSHA began enforcing the PEL and STEL in the construction and shipyard
                sectors on May 11, 2018. See Updated Interim Enforcement Guidance for
                the Beryllium Standards, available at https://www.osha.gov/laws-regs/standardinterpretations/2018-12-11.
                 On June 27, 2017, based on stakeholder feedback and a review of
                applicable existing standards, OSHA published a notice of proposed
                rulemaking (NPRM) proposing to revoke the ancillary provisions for both
                the construction and shipyards standards while retaining the new lower
                PEL of 0.2 [micro]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for those sectors
                (82 FR 29182).\1\ OSHA stated in the proposal that it was also
                considering extending the compliance dates in the January 9, 2017,
                final rule by a year for the construction and shipyard standards. OSHA
                reasoned that this potential extension would give affected employers
                additional time to come into compliance with the final rule's
                requirements, which could be warranted by the uncertainty created by
                the proposal. OSHA also stated in the proposal that it would not
                enforce the construction and shipyard standards without further notice
                while the rulemaking was underway.\2\
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                 \1\ For a full discussion of the events leading to the proposed
                rule, see the preamble to the 2017 NPRM (82 FR at 29185-88).
                 \2\ Subsequently, in March 2018, OSHA stated that it would begin
                enforcing the PEL and STEL on May 11, 2018 (see Memorandum for
                Regional Administrators, Delay of Enforcement of the Beryllium
                Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR
                1926.1124, Mar. 2, 2018, available at https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02).
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                 On May 7, 2018, OSHA issued a direct final rule (DFR) adopting a
                number of clarifying amendments to the general industry beryllium
                standard to address the application of that standard to materials
                containing trace amounts of beryllium (83 FR 19936). The DFR amended
                the text of the general industry standard to clarify OSHA's intent with
                respect to certain terms in the standard, including the definition of
                beryllium work area, the definition of emergency, and the meaning of
                the terms dermal contact and beryllium contamination. The DFR also
                clarified OSHA's intent with respect to provisions for disposal and
                recycling and with respect to provisions that the agency intended to
                apply only where skin can be exposed to materials containing at least
                0.1 percent beryllium by weight. The DFR became effective on July 6,
                2018, because OSHA did not receive significant adverse comment in
                response to the DFR (see 83 FR 1045).
                 On December 11, 2018, OSHA published another NPRM to modify several
                of the general industry beryllium standard's definitions, along with
                the provisions for methods of compliance, personal protective clothing
                and equipment, hygiene areas and practices,
                [[Page 53911]]
                housekeeping, medical surveillance, communication of hazards, and
                recordkeeping (83 FR 63746). OSHA reasoned in part that the proposed
                modifications would provide clarification and simplify or improve
                compliance. OSHA recently finalized this proposal in a final rule
                published on July 14, 2020 (85 FR 42582).
                 On September 30, 2019, OSHA issued a final rule in which the agency
                declined to revoke the ancillary provisions of the construction and
                shipyards standards as proposed in the June 27, 2017 NPRM (84 FR
                51377). Based on comments received and the record as a whole, the
                agency determined that there is not complete overlap in protections
                between the beryllium standards' ancillary provisions and existing
                standards applicable to these sectors. Thus, revoking all of the
                ancillary provisions and leaving only the PEL and STEL would be
                inconsistent with OSHA's statutory mandate to protect workers from the
                demonstrated significant risks of material impairment of health
                resulting from exposure to beryllium and beryllium compounds. However,
                after careful review, OSHA determined that some revisions to the
                construction and shipyards standards were appropriate. To give the
                agency time to finalize a new proposal with these more limited changes
                to the construction and shipyards standards, the final rule delayed the
                compliance dates for all ancillary provisions of these standards until
                September 30, 2020. The final rule did not impact the PEL or STEL,
                which OSHA has been enforcing since May 11, 2018.
                 On October 8, 2019, OSHA published the proposal being finalized
                here (84 FR 53902). In the NPRM, the agency proposed several revisions
                to the ancillary provisions of the construction and shipyard standards
                to more appropriately tailor the standards to these industries, to
                align certain provisions with recent changes to the general industry
                standard, and to clarify OSHA's intent with respect to materials
                containing trace amounts of beryllium. The NPRM proposed revisions to
                the paragraphs for definitions, methods of compliance, respiratory
                protection, personal protective clothing and equipment, hygiene areas
                and practices, housekeeping, medical surveillance, hazard
                communication, and recordkeeping. In developing its proposal, OSHA
                considered relevant comments received in response to the June 2017
                construction and shipyards proposal, as well as general industry
                stakeholder input that led to the 2018 general industry DFR. In
                addition, OSHA proposed some revisions to align with changes proposed
                in the December 12, 2018 general industry NPRM (83 FR 39351).
                 OSHA consulted with the Advisory Committee on Construction Safety &
                Health (ACCSH) regarding this proposal on September 9, 2019. ACCSH
                recommended that OSHA proceed with the proposal to ``revise the
                beryllium standard for construction to ensure that the ancillary
                provisions are tailored to the construction industry and align with the
                general industry standard, where appropriate,'' and unanimously
                recommended that OSHA do so as soon as possible (see Document ID OSHA-
                2018-0012-0125, Tr. 62-67).
                 OSHA requested comments on the proposed changes and provided
                stakeholders 30 days to submit comments. In addition, OSHA held a
                public hearing on the proposal on December 3, 2019, where the agency
                heard testimony from several stakeholders (see Document ID 2222; 2223).
                Participants who filed notices of intention to appear at the hearing
                were permitted to submit additional evidence and data relevant to the
                proceeding for a 44-day period following the hearing. That period ended
                on January 16, 2020. The record remained open for an additional 15
                days, until January 31, 2020, for the submission of final briefs,
                arguments, and summations. OSHA received twenty-five timely comments
                during this rulemaking by the close of the last post hearing comment
                period of January 31, 2020.
                 OSHA estimates that these changes will lead to total annualized
                cost savings of $2.5 million at a 3 percent discount rate over 10
                years; at a discount rate of 7 percent over 10 years, the annualized
                cost savings would be $2.6 million. OSHA has determined that these
                changes will maintain safety and health protections for workers, while
                facilitating compliance with the standards and yielding some cost
                savings.
                 This rule is not an Executive Order (E.O.) 13771 regulatory action
                because this rule is not significant under E.O. 12866. Pursuant to the
                Congressional Review Act (5 U.S.C. 801 et seq.), the Office of
                Information and Regulatory Affairs designated this rule not a ``major
                rule,'' as defined by 5 U.S.C. 804(2).
                II. Pertinent Legal Authority
                 The purpose of the Occupational Safety and Health Act of 1970
                (``the OSH Act'' or ``the Act''), 29 U.S.C. 651 et seq., is to assure
                so far as possible every working man and woman in the Nation safe and
                healthful working conditions and to preserve our human resources. 29
                U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
                of Labor to promulgate occupational safety and health standards
                pursuant to notice and comment rulemaking. See 29 U.S.C. 655(b). An
                occupational safety or health standard is a standard which requires
                conditions, or the adoption or use of one or more practices, means,
                methods, operations, or processes, reasonably necessary or appropriate
                to provide safe or healthful employment and places of employment. 29
                U.S.C. 652(8).
                 The Act also authorizes the Secretary to ``modify'' or ``revoke''
                any occupational safety or health standard, 29 U.S.C. 655(b), and under
                the Administrative Procedure Act, 5 U.S.C. 551 et seq., regulatory
                agencies generally may revise their rules if the changes are supported
                by a reasoned analysis, see Motor Vehicle Mfrs. Ass'n v. State Farm
                Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). ``While the removal of a
                regulation may not entail the monetary expenditures and other costs of
                enacting a new standard, and accordingly, it may be easier for an
                agency to justify a deregulatory action, the direction in which an
                agency chooses to move does not alter the standard of judicial review
                established by law.'' Id. at 43.
                 The Act provides that in promulgating health standards dealing with
                toxic materials or harmful physical agents, such as the beryllium
                standards, the Secretary must set the standard which most adequately
                assures, to the extent feasible, on the basis of the best available
                evidence, that no employee will suffer material impairment of health or
                functional capacity even if such employee has regular exposure to the
                hazard dealt with by such standard for the period of his working life.
                29 U.S.C. 665(b)(5). The Supreme Court has held that before the
                Secretary can promulgate any permanent health or safety standard, he
                must make a threshold finding that significant risk is present and that
                such risk can be eliminated or lessened by a change in practices. See
                Indus. Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-
                42 (1980) (plurality opinion) (``Benzene''). OSHA need not make
                additional findings on risk for this proposal because OSHA previously
                determined that the beryllium standards address a significant risk, see
                82 FR 2545-52, and reaffirmed that finding in the rule finalizing the
                2017 shipyards and construction proposal, the final rule published
                September 30, 2019. See Pub. Citizen Health Research Grp. v. Tyson, 796
                F.2d 1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that
                [[Page 53912]]
                OSHA must ``find that each and every aspect of its standard eliminates
                a significant risk'').
                 OSHA standards must also be both technologically and economically
                feasible. See United Steelworkers v. Marshall, 647 F.2d 1189, 1248
                (D.C. Cir. 1980) (``Lead I''). The Supreme Court has defined
                feasibility as ``capable of being done.'' Am. Textile Mfrs. Inst. v.
                Donovan, 452 U.S. 490, 509-10 (1981) (``Cotton Dust''). The courts have
                further clarified that a standard is technologically feasible if OSHA
                proves a reasonable possibility, ``within the limits of the best
                available evidence, . . . that the typical firm will be able to develop
                and install engineering and work practice controls that can meet the
                [standard] in most of its operations.'' Lead I, 647 F.2d at 1272. With
                respect to economic feasibility, the courts have held that ``a standard
                is feasible if it does not threaten massive dislocation to or imperil
                the existence of the industry.'' Id. at 1265 (internal quotation marks
                and citations omitted).
                 OSHA exercises significant discretion in carrying out its
                responsibilities under the Act. Indeed, a number of terms of the
                statute give OSHA wide discretion to devise means to achieve the
                Congressionally-mandated goal of ensuring worker safety and health. See
                Lead I, 647 F.2d at 1230. Thus, where OSHA has chosen some measures to
                address a significant risk over other measures, those challenging the
                OSHA standard must ``identify evidence that their proposals would be
                feasible and generate more than a de minimis benefit to worker
                health.'' N. Am.'s Bldg. Trades Unions v. OSHA, 878 F.3d 271, 282 (D.C.
                Cir. 2017).
                 Although OSHA is required to set standards ``on the basis of the
                best available evidence,'' 29 U.S.C. 655(b)(5), its determinations are
                ``conclusive'' if supported by ``substantial evidence in the record
                considered as a whole,'' 29 U.S.C. 655(f). Similarly, as the Supreme
                Court noted in Benzene, OSHA must look to ``a body of reputable
                scientific thought'' in making determinations, but a reviewing court
                must ``give OSHA some leeway where its findings must be made on the
                frontiers of scientific knowledge.'' Benzene, 448 U.S. at 656. When
                there is disputed scientific evidence in the record, OSHA must review
                the evidence on both sides and ``reasonably resolve'' the dispute.
                Tyson, 796 F.2d at 1500. The ``possibility of drawing two inconsistent
                conclusions from the evidence does not prevent the agency's finding
                from being supported by substantial evidence.'' N. Am.'s Bldg. Trades
                Unions, 878 F.3d at 291 (quoting Cotton Dust, 452 U.S. at 523)
                (alterations omitted). As the D.C. Circuit has noted, where ``OSHA has
                the expertise we lack and it has exercised that expertise by carefully
                reviewing the scientific data,'' a dispute within the scientific
                community is not occasion for the reviewing court to take sides about
                which view is correct. Tyson, 796 F.2d at 1500.
                 Finally, because section 6(b)(5) of the Act explicitly requires
                OSHA to set health standards that eliminate risk ``to the extent
                feasible,'' OSHA uses feasibility analysis rather than cost-benefit
                analysis to make standards-setting decisions dealing with toxic
                materials or harmful physical agents (29 U.S.C. 655(b)(5)). An OSHA
                standard in this area must be technologically and economically
                feasible--and also cost effective, which means that the protective
                measures it requires are the least costly of the available alternatives
                that achieve the same level of protection--but OSHA cannot choose an
                alternative that provides a lower level of protection for workers'
                health simply because it is less costly. See Int'l Union, UAW v. OSHA,
                37 F.3d 665, 668 (D.C. Cir. 1994); see also Cotton Dust, 452 U.S. at
                514 n.32. In Cotton Dust, the Court explained that Congress itself
                defined the basic relationship between costs and benefits, by placing
                the ``benefit'' of worker health above all other considerations save
                those making attainment of this ``benefit'' unachievable. The court
                further stated that any standard based on a balancing of costs and
                benefits by the Secretary that strikes a different balance than that
                struck by Congress would be inconsistent with the command set forth in
                section 6(b)(5). Cotton Dust, 452 U.S. at 509. Thus, while OSHA
                estimates the costs and benefits of its proposed and final rules,
                partly in accordance with Executive Orders 12866 and 13771, these
                calculations do not form the basis for the agency's regulatory
                decisions.
                III. Summary and Explanation of the Final Rule
                 The following discussion summarizes and explains the changes OSHA
                proposed to the beryllium standards for construction and shipyards,
                discusses the comments received on the proposal, and explains OSHA's
                determination with respect to each proposed change.
                 The 2017 final rule promulgated three standards designed to protect
                workers from the serious health effects caused by occupational exposure
                to beryllium and beryllium compounds (see 82 FR 2470 (Jan. 9, 2017)).
                Each of the three standards, which cover general industry (29 CFR
                1910.1024), construction (29 CFR 1926.1124), and shipyards (29 CFR
                1915.1024), contains a comprehensive set of protections, consisting of
                the exposure limits in paragraph (c) and a number of ancillary
                provisions, typical of OSHA health standards, in paragraphs (d) through
                (n) (see 82 FR at 2476). The ancillary provisions encompass
                requirements for exposure assessment, competent person (construction)
                or regulated areas (shipyards), methods of compliance, respiratory
                protection, personal protective clothing and equipment, hygiene,
                housekeeping, medical surveillance and medical removal, communication
                of hazards, and recordkeeping (29 CFR 1915.1024(d)-(n); 29 CFR
                1926.1124(d)-(n)).
                 Since the publication of the 2017 final rule, OSHA has sought to
                revise the beryllium standards in a number of separate rulemakings.
                Those bearing on this proposal include (1) the June 27, 2017,
                construction and shipyards proposal (82 FR at 29182); (2) the May 7,
                2018, general industry direct final rule (DFR) (83 FR at 19936); (3)
                the December 11, 2018, general industry proposal (83 FR at 63746), (4)
                the October 8, 2019, construction and shipyards proposal (84 FR at
                53902); and (5) the (July 14, 2020) general industry final rule (85 FR
                42582) (see Section I, Background, above for more details). In light of
                the comments OSHA received on these rulemakings and the evidence in the
                record, OSHA is revising several paragraphs of the beryllium standards
                for construction and shipyards.
                 OSHA has determined that, taken together, the limited exposures in
                the construction and shipyards industries and the partial overlap
                between the beryllium standards and other OSHA standards make revisions
                to both the construction and shipyards beryllium standards appropriate.
                The rationales for these revisions fall into three categories. First,
                OSHA is removing or modifying some provisions which--although
                appropriate in the general industry context--may be unnecessary or
                require revision to appropriately protect employees in the construction
                and shipyards industries. As will be explained further, operations with
                beryllium exposure in the construction and shipyards industries are
                significantly less varied and employees are exposed to materials with
                significantly lower content beryllium than in the general industry
                sector. In addition, employees in these industries receive the
                protections of several other OSHA standards, as the agency explained in
                the June 27, 2017, construction and shipyards proposal, in the final
                rule published on September
                [[Page 53913]]
                30, 2019, and in the subsequent construction and shipyards proposal
                published on October 8, 2019.
                 Second, OSHA is revising some provisions of the construction and
                shipyard standards to avoid inconsistencies with the clarifying changes
                the agency has made in the (July 14, 2020) general industry final rule.
                OSHA is aligning these standards to the extent possible because the
                agency believes that, where there is no substantive difference among
                industries with respect to a particular provision, applying similar
                requirements across industries aids both compliance and enforcement.
                Conversely, applying different requirements to identical situations may
                lead to confusion. While most of the changes in the July 14, 2020,
                final rule were designed specifically for general industry, OSHA is
                aligning changes to paragraph (b), medical definitions; paragraph (k),
                medical surveillance; and paragraph (n), recordkeeping, because the
                rationale underlying these changes applies equally in the construction
                and shipyards contexts.
                 Third, OSHA is revising certain paragraphs of the construction and
                shipyard standards to address the application of provisions related to
                dermal contact to materials containing beryllium in trace quantities.
                In the general industry DFR, OSHA clarified that provisions triggered
                by dermal contact with beryllium or beryllium contamination would apply
                only for dust, fumes, mists, or solutions containing beryllium in
                concentrations greater than or equal to 0.1 percent by weight (83 FR at
                19939). OSHA's rationale regarding this final set of proposed changes
                dates back to the agency's August 7, 2015, beryllium NPRM (which led to
                the 2017 final rule) (80 FR at 47565). There, OSHA proposed to exempt
                materials containing less than 0.1 percent beryllium by weight on the
                premise that workers exposed only to beryllium as a trace contaminant
                are not exposed at levels of concern (80 FR at 47775). However, the
                agency noted evidence of high airborne exposures in construction and
                shipyard sectors, in particular during blasting operations and cleanup
                of spent media (80 FR at 47733). Therefore, OSHA proposed for comment
                several regulatory alternatives, including an alternative that would
                expand the scope of the proposed standard to include all operations in
                general industry where beryllium exists only as a trace contaminant (80
                FR at 47730) and an alternative that would expand the scope to include
                employers in the shipyard and maritime sectors (80 FR at 47777).
                 In the 2017 final rule, after considering stakeholders' comments,
                OSHA decided to apply the exemption for materials containing less than
                0.1 percent beryllium by weight only where the employer has objective
                data demonstrating that employee exposure to airborne beryllium will
                remain below the action level of 0.1 [micro]g/m \3\, measured as an 8-
                hour TWA, under any foreseeable conditions (82 FR at 2643). OSHA noted
                that the action level exception ensured that workers with airborne
                exposures of concern were covered by the standard. OSHA agreed with the
                many commenters and public hearing testimony expressing concern that
                hazardous exposures to beryllium can occur with materials containing
                trace amounts of beryllium. While the agency acknowledged concerns
                expressed by the Abrasive Blasting Manufacturing Alliance (ABMA) and
                the Edison Electric Institute that processing materials with trace
                amounts of beryllium may not necessarily produce significant exposures
                to beryllium, evidence in the record showed significant exposures in
                some operations using materials with trace amounts of beryllium. OSHA
                explicitly identified abrasive blasting as one such operation. The
                agency determined that preventing airborne exposures at or above the
                action level, even to trace amounts of beryllium, reduces the risk of
                beryllium-related health effects to workers (82 FR at 2643; see also 82
                FR at 2552).
                 While adopting this limited exemption for trace materials, OSHA
                also adopted the regulatory alternative expanding the scope of the rule
                to include both construction and shipyards, but recognized that these
                sectors had limited operations that generated airborne beryllium
                exposures of concern and issued separate standards for these sectors.
                Nonetheless, OSHA applied similar ancillary requirements across the
                general industry, construction, and shipyards beryllium standards. At
                the same time, the agency acknowledged that different approaches may be
                warranted for some provisions in construction and shipyards than for
                general industry due to the nature of the materials and work processes
                typically used in those industries (82 FR at 2690). Specifically,
                exposures to beryllium in construction and shipyards are limited to
                only a few operations, primarily abrasive blasting in construction and
                shipyards and some welding operations in shipyards (see Document ID
                2042, FEA Chapter III, pp. 103-11 and Table III-8e). While the high
                airborne exposures during the blasting operation can expose workers to
                beryllium in excess of the PEL, the blasting materials contain only
                trace amounts of beryllium (materials such as coal slag normally
                contain approximately 11 [micro]g/g or 0.0001 percent) (Document ID
                2042, Chapter IV, Technological Feasibility, Table IV.69). Furthermore,
                the rulemaking record contains evidence of beryllium exposure only
                during limited welding operations in shipyards (only 4 of 127 sample
                results showed detectable levels of airborne beryllium) (Document ID
                2042, Chapter IV, Technological Feasibility, p. IV-580).
                 As the regulatory history suggests, OSHA intended to protect
                employees working with trace beryllium when those employees experience
                significant airborne exposures. OSHA did not intend for provisions
                aimed at protecting workers from the effects of dermal contact to apply
                in the case of materials containing only trace amounts of beryllium in
                the absence of significant airborne beryllium exposure. For this
                reason, OSHA clarified in the general industry DFR that provisions
                triggered by dermal contact with beryllium or beryllium contamination
                would apply only for dust, fumes, mists, or solutions containing
                beryllium in concentrations greater than or equal to 0.1 percent by
                weight (83 FR at 19939). In construction and shipyards, where beryllium
                exposure occurs almost exclusively from materials that contain
                beryllium in concentrations less than or equal to 0.1 percent by
                weight, OSHA proposed to remove provisions triggered by dermal contact
                or beryllium contamination entirely, except for certain provisions the
                agency deemed important to limit airborne exposure (through re-
                entrainment of beryllium-containing dust from PPE or other surfaces) to
                those workers who have significant airborne exposures (see, e.g., 84 FR
                at 53913). Additionally, although limited welding operations in
                shipyards may include base materials or fume containing more than 0.1
                percent beryllium by weight, OSHA has reason to believe that skin or
                surface contamination is not an exposure source of concern in these
                operations (84 FR at 53906).
                 Based on the foregoing, OSHA proposed and is now finalizing
                revisions to the following paragraphs of the beryllium standards for
                construction and shipyards: Paragraph (b), definitions; paragraph (f),
                methods of compliance; paragraph (g), respiratory protection; paragraph
                (h), personal protective clothing and equipment; paragraph (i), hygiene
                areas and
                [[Page 53914]]
                practices; paragraph (j), housekeeping; paragraph (k), medical
                surveillance; paragraph (m), communication of hazards; and paragraph
                (n), recordkeeping. OSHA is finalizing the standards as proposed,
                except for minor modifications to the following paragraphs: (1)
                Paragraph (b), specifically, by amending the definition of CBD
                diagnostic center and removing the definition of high efficiency
                particulate air (HEPA) filter; (2) paragraph (f)(1), the written
                exposure control plan; (3) paragraph (h), personal protective clothing
                and equipment; and (4) paragraph (k), medical surveillance.
                 OSHA notes that in response to the October 8, 2019 NPRM, several
                industry commenters responded that OSHA's proposed changes to simplify
                and better tailor the construction and shipyards standards would not go
                far enough, and that none of the beryllium standards' ancillary
                provisions are necessary (see, e.g., Document ID 2203, p. 1-2, 11;
                2199, p. 3; 2205, p. 2; 2206, pp. 10-13; 2209, pp. 1-2; 2241, pp. 3-4).
                For example, the Abrasive Blasting Manufacturing Alliance (ABMA)
                claimed that ``[t]here is no evidence that the pre-existing standards
                governing abrasive blasting are insufficient to protect employees, and
                there is no evidence that exposure to the trace amounts of naturally
                occurring beryllium in abrasive blasting (or welding) has resulted in
                any material impairment of health to employees in all of the many years
                this work has been performed'' (Document ID 2206, p. 11).
                 Comments suggesting that OSHA entirely eliminate the ancillary
                provisions of the construction and shipyards standards are beyond the
                scope of this rulemaking and were already addressed in the September
                30, 2019, final rule (84 FR 51377). OSHA did not propose in this
                rulemaking to remove the standards' ancillary provisions in their
                entirety, and in fact, explained in the NPRM that the September 2019
                final rule established that removing the ancillary provisions in their
                entirety would not sufficiently protect workers in these industries
                from airborne exposure to beryllium (84 FR at 51390-97).
                 After reviewing the comments and evidence in the record, OSHA
                determined that beryllium construction and shipyards standards
                consisting only of the TWA PEL and STEL would not be sufficiently
                protective (84 FR at 51390-91). Other OSHA standards do contain some
                requirements that overlap with, or duplicate, the requirements of the
                beryllium standards for construction and shipyards. In particular, as
                explained below in the Summary and Explanation for the removal of
                paragraph (i), OSHA has determined that other OSHA standards overlap
                with the previous hygiene requirements of the construction and
                shipyards standards. However, for most ancillary provisions, there is
                only partial overlap, and for the remainder, there is no overlap at
                all. Thus, in the September 30, 2019 final rule, OSHA determined not to
                adopt its proposal to remove all ancillary provisions from the
                construction and beryllium standards (84 FR at 51390-91). In that final
                rule, OSHA also reaffirmed its finding that beryllium exposure presents
                a significant risk of material health impairment to workers in the
                construction and shipyards sectors (84 FR at 51388-90). Commenters to
                the October 8, 2019, proposal have provided no new information
                indicating that protections are unnecessary in these sectors, and OSHA
                finds that the ancillary provisions that it is retaining in this final
                rule are necessary and appropriate to protect workers in the
                construction and shipyards industries.
                 The remainder of this summary and explanation provides detail on
                the changes OSHA is finalizing to the beryllium standards for
                construction and shipyards, including the agency's review of the
                evidence in the record and the reasoning for its determinations.
                Paragraph (b) Definitions
                 Paragraph (b) of the beryllium standards for construction and
                shipyards specifies the definitions of terms used in the beryllium
                regulatory text. This final rule modifies several definitions of the
                2017 standards: CBD diagnostic center, chronic beryllium disease (CBD),
                and confirmed positive; adds a definition of beryllium sensitization;
                and eliminates the definitions of emergency and high-efficiency
                particulate air (HEPA) filter. The revised definitions include several
                changes from previous paragraph (b) that OSHA proposed in the October
                2019 NPRM, and all of the changes apply to both the construction and
                shipyards standards. A discussion of each definition affected by OSHA's
                proposed changes to paragraph (b), comments and testimony received on
                the proposal, and the final version of each revised definition follows.
                 OSHA proposed to modify the definitions of CBD diagnostic center,
                chronic beryllium disease (CBD), and confirmed positive and add a
                definition of beryllium sensitization to align these definitions in the
                construction and shipyards standards with changes the agency had
                already proposed to the beryllium standard for general industry. OSHA
                proposed these modifications for the general industry standard in
                December 2018 to clarify the meaning of the terms used in that standard
                (83 FR at 63747). OSHA provided a sixty-day comment period for the
                general industry proposal, which closed on February 11, 2019. OSHA's
                rationale for including these definitions applies equally in the
                construction and shipyards contexts. Therefore, as discussed in the
                NPRM, in addition to the comments received during this rulemaking OSHA
                has considered the comments that were submitted in response to the
                proposed changes to definitions in the general industry standard along
                with comments received during this rulemaking on the proposed
                definitions in determining whether to finalize the proposed definitions
                in the construction and shipyards standards. The comments to the
                general industry proposal can be found in Docket OSHA-2018-0003 at
                http://regulations.gov. In addition, OSHA proposed to remove references
                to the term emergency throughout the construction and shipyards
                standards, including the definition in paragraph (b).
                Beryllium Sensitization
                 This final rule defines the term beryllium sensitization as a
                response in the immune system of a specific individual who has been
                exposed to beryllium. The definition also states that there are no
                associated physical or clinical symptoms and no illnesses or disability
                with beryllium sensitization alone, but the response that occurs
                through beryllium sensitization can enable the immune system to
                recognize and react to beryllium. It further states that while not
                every beryllium-sensitized person will develop CBD, beryllium
                sensitization is essential for development of CBD. The agency is adding
                this definition to clarify other provisions in the standard, such as
                the definitions of chronic beryllium disease (CBD) and confirmed
                positive, as well as the provisions for medical surveillance in
                paragraph (k) and hazard communication in paragraph (m).
                 As also explained in the 2020 beryllium final rule for general
                industry (85 FR 42582), this definition of beryllium sensitization is
                identical to the definition proposed in the 2018 NPRM for general
                industry and the 2019 NPRM for construction and shipyards, and is
                consistent with information provided in the 2017 final beryllium rule
                (82 FR at 2470). In the preamble to the 2017 final rule, OSHA found
                that individuals sensitized through either the dermal or inhalation
                exposure pathways respond to beryllium through
                [[Page 53915]]
                the formation of a beryllium-protein complex, which then binds to T-
                cells stimulating a beryllium-specific immune response (82 FR at 2494).
                The formation of the T-cell-beryllium-protein complex that results in
                beryllium sensitization rarely manifests in any outward symptoms (such
                as coughing or wheezing); most who are sensitized show no symptoms at
                all (see 82 FR at 2492, 2527). Once an individual has been sensitized,
                any subsequent beryllium exposures via inhalation can progress to
                serious lung disease through the formation of granulomas and fibrosis
                (see 82 FR at 2491-98). Since the pathogenesis of CBD involves a
                beryllium-specific, cell-mediated immune response, CBD cannot occur in
                the absence of sensitization (82 FR at 2492; Document ID 1355).
                Therefore, this definition's explanation that beryllium sensitization
                is essential for development of CBD is consistent with the agency's
                findings in the 2017 final rule (82 FR at 2470).
                 Several commenters expressed support for the proposed inclusion of
                a definition of beryllium sensitization in OSHA's beryllium standards,
                including National Jewish Health (NJH) (Document ID 2211, p. 3; 2243 p.
                1; OSHA-2018-0003-0022, p. 2), the United Steelworkers (USW) (Document
                ID 2222, Tr. 24-25; 2242, p. 2; OSHA-2018-0003-0033, p. 1), and
                Materion Brush (Materion) (Document ID 2237, p. 4; OSHA-2018-0003-0038,
                p. 8). For example, USW stated that the proposed definition of
                sensitization is clear and accurate, and is necessary because the
                beryllium standard includes many provisions related to the recognition
                of and appropriate response to beryllium sensitization among beryllium-
                exposed workers (Document ID OSHA-2018-0003-0033, p. 1). The agency
                also received supportive comments in response to the beryllium general
                industry NPRM, which proposed an identical definition of beryllium
                sensitization, from the U.S. Department of Defense (DOD) (OSHA-2018-
                0003-0029, p. 1), and Edison Electric Institute (Document ID OSHA-2018-
                0003-0031, p. 2).
                 Some commenters expressed concerns regarding OSHA's proposed
                definition of beryllium sensitization.\3\ First, NJH stated that OSHA's
                definition is ``at odds with'' the definition of sensitization included
                in the guidelines of the American Thoracic Society (ATS), which, in
                2014, published a Statement on Beryllium (ATS Statement) that included
                the following definition: ``Beryllium sensitization is a response in
                the immune system of an individual who has been exposed to beryllium. A
                diagnosis of [beryllium sensitization] can be based on two abnormal
                blood BeLPTs, one abnormal and one borderline blood BeLPT, three
                borderline BeLPTs, or one abnormal bronchoalveolar lavage (BAL) BeLPT.
                Beryllium sensitization is essential for development of CBD'' (Document
                ID 2243, p. 2; OSHA-2018-0003-0027 p. 1; OSHA-2018-0003-0022, p. 2;
                OSHA-2018-0003-0364, pp. 1, 44).\4\ The American College of
                Occupational and Environmental Medicine (ACOEM) similarly stated that
                the definition of beryllium sensitization ``has always been two
                abnormal, one abnormal and one borderline, or three borderline LPT
                results,'' which it characterized as consistent with the research
                literature and with how the term ``beryllium sensitization'' is used in
                clinical practice and medical surveillance. In contrast, it said,
                OSHA's less precise proposed definition for beryllium sensitization
                could-together with its use of the term ``confirmed positive'' (see
                discussion below)-create confusion in clinical practice (Document ID
                2213, p. 2). In response to OSHA's general industry NPRM, the National
                Supplemental Screening Program (NSSP) and NJH also recommended that
                OSHA's definition of beryllium sensitization should include text based
                on the ATS Statement on Beryllium (Document IDs OSHA-2018-0003-0027, p.
                1; OSHA-2018-0003-0022, p. 2).
                ---------------------------------------------------------------------------
                 \3\ Comments from the U.S. House of Representatives Committee on
                Education and Labor (CEL) stated that decoupling the term beryllium
                sensitization from OSHA's definition of confirmed positive
                (discussed later in this Summary and Explanation) would have
                consequences for workers who leave employment already sensitized to
                beryllium because their medical records would only state ``confirmed
                positive,'' rather than ``beryllium sensitized'' (Document ID 2208,
                pp. 4-5). OSHA addresses CEL's comments in the Summary and
                Explanation of the definition of confirmed positive.
                 \4\ NJH also stated that in order for a medical condition to be
                covered under Worker's Compensation, it needs to meet the statutory
                language requirements. NJH expressed concern that the statement that
                there is ``no illness or disability with beryllium sensitization
                alone'' in OSHA's proposed definition could preclude workers with
                beryllium sensitization from obtaining Workers' Compensation
                coverage and medical follow up in some states, including clinical
                evaluation for CBD once they leave employment (Document ID 2243, pp.
                2-3). At the hearing, NJH further explained that, in light of how
                diagnoses of pleural plaque have affected the individuals' ability
                to obtain benefits for lung cancer or mesothelioma, OSHA's
                definition could adversely affect workers' ability to obtain
                benefits for CBD in the future by prematurely triggering the statute
                of limitations for such claims. (Document ID 2222, Tr. 39-41).
                 OSHA intends for the definition of confirmed positive to serve
                only as a trigger for certain provisions of the beryllium standard.
                How OSHA defines this phrase for purposes of the beryllium standard
                in no way limits healthcare professionals' ability or incentive to
                diagnose beryllium sensitization.
                ---------------------------------------------------------------------------
                 NJH proposed that OSHA should modify its definition of beryllium
                sensitization to the following: ``Beryllium sensitization is the result
                of a beryllium specific cell-mediated immune response of an individual
                who has been exposed to beryllium. A diagnosis of beryllium
                sensitization can be based on two abnormal blood BeLPTs, one abnormal
                and one borderline blood BeLPT, or one abnormal bronchoalveolar lavage
                (BAL) BeLPT. Three borderline BeLPTs may also indicate sensitization''
                (Document ID 2211, p. 3; 2243, p.2). NJH believes that its proposed
                definition would be more consistent with ATS' definition and would not
                preclude follow-up examinations of sensitized workers for CBD under
                workers' compensation coverage.
                 Materion disagreed with NJH's argument, stating that OSHA's
                definition of beryllium sensitization and its complementary definition
                of confirmed positive (discussed later) ``align well with the ATS
                definitions,'' and also stated that the definitions in the beryllium
                standards ``should exist to best serve the understanding of employers
                and employees, not the medical community'' (Document ID 2237, p. 3).
                 OSHA has considered the comments submitted by NJH, ACOEM, Materion,
                and NSSP, and has concluded that the proposed definition of beryllium
                sensitization, when properly read in the context of the standards and
                in combination with the definition of confirmed positive, does not
                contradict the definitions used by ATS or other organizations, and is
                not likely to create confusion in clinical practice. The agency is
                providing a definition of beryllium sensitization to give stakeholders,
                such as employers and employees, a general understanding of what
                beryllium sensitization is and its relationship to CBD.
                 The definition of confirmed positive explains how the results of
                BeLPT testing should be interpreted in the context of the standard's
                provisions that benefit beryllium-exposed workers, specifically,
                medical surveillance and medical removal protection. The confirmed
                positive definition establishes that these benefits should be extended
                to workers who have a pattern of BeLPT results, obtained in a three-
                year period, consistent with the NJH's recommended definition of
                beryllium sensitization.
                 In their comments on the general industry standard, NSSP objected
                to the statement in the definition that no physical or clinical
                symptoms, illness,
                [[Page 53916]]
                or disability are associated with beryllium sensitization alone, but
                did not explain the reason for their concern (Document ID OSHA-2018-
                0003-0027, p. 1). Materion supported the agency's inclusion of this
                information in the definition, stating that ``employees deserve to
                understand that beryllium sensitization does not involve symptoms . .
                .'' (Document ID OSHA-2018-0003-0038, p. 5). USW also specifically
                supported the accuracy of this section of OSHA's proposed definition of
                beryllium sensitization (Document ID OSHA-2018-0003-0033, p. 1).
                 As explained in the Summary and Explanation for paragraph (b) of
                the July 14, 2020, final rule revising the general industry standard
                (85 FR 42582), OSHA decided to retain the statement that there is no
                illness or disability with beryllium sensitization in the definition of
                beryllium sensitization because it is important that employers and
                employees understand the asymptomatic nature of beryllium sensitization
                and the need for specialized testing such as the BeLPT. The statement
                is consistent with OSHA's discussion of beryllium sensitization in the
                2017 final rule (82 FR at 2492-99). As OSHA discussed in the 2017 final
                rule, sensitization through dermal contact has sometimes been
                associated with skin granulomas, contact dermatitis, and skin
                irritation, but these reactions are rare and those sensitized through
                dermal exposure to beryllium typically do not exhibit any outward signs
                or symptoms (see 82 FR 2488, 2491-92, 2527). OSHA determined that while
                beryllium sensitization rarely leads to any outward signs or symptoms,
                beryllium sensitization is an adverse health effect because it is a
                change to the immune system that leads to risk of developing CBD (82 FR
                at 2498-99). The agency believes that the asymptomatic nature of
                beryllium sensitization, especially in the lung, should be conveyed to
                employers and employees to emphasize why specialized testing such as
                the BeLPT should be provided to workers who may have no symptoms of
                illness associated with beryllium exposure. For these reasons, OSHA is
                retaining the statement ``[t]here are no associated physical or
                clinical symptoms and no illness or disability with beryllium
                sensitization alone'' in the definition of beryllium sensitization.
                 As discussed in greater detail in the beryllium final rule for
                general industry (85 FR 42582), the State of Washington Department of
                Labor and Industries, Division of Occupational Safety and Health
                (DOSH), commented that OSHA's proposed definition of beryllium
                sensitization places unnecessary emphasis on the role that beryllium
                sensitization plays in the development of CBD. According to DOSH,
                ``[t]his language may cause confusion with proper diagnosis of CBD and
                application of the rule requirements for workers who have developed CBD
                without a confirmed beryllium sensitization'' (Document ID OSHA-2018-
                0003-0023, p. 1). However, other commenters, including NJH, NSSP, and
                USW, supported including the statement that beryllium sensitization is
                necessary for the development of CBD in OSHA's definition of beryllium
                sensitization (Document ID OSHA-2018-0003-0022, p. 2; OSHA-2018-0003-
                0027, p. 1; OSHA-2018-0003-0033, p. 1).
                 Following consideration of DOSH's comment, OSHA has determined that
                this information should remain in the definition of beryllium
                sensitization (as well as the definition of chronic beryllium disease,
                discussed later). OSHA believes that an understanding of the
                relationship between beryllium sensitization and CBD is essential to
                workers' and employers' understanding of the beryllium standard. By
                including the role that sensitization plays in the development of CBD
                in the definition of beryllium sensitization, OSHA intends to make a
                number of things clear to workers and employers: That beryllium
                sensitization, although not itself a disease, is nevertheless an
                adverse health effect that presents a risk for developing CBD and thus
                should be prevented; the need to identify beryllium sensitization
                through regular medical screening; and why workers who are confirmed
                positive should be offered specialized medical evaluation and medical
                removal protection. OSHA notes that DOSH does not dispute the factual
                accuracy of OSHA's statement regarding the role beryllium sensitization
                plays in the development of CBD, which the agency established in the
                Health Effects section of the 2017 final standard (82 FR at 2495-96).
                 OSHA believes that emphasizing the role that beryllium
                sensitization plays in the development of CBD provides employers and
                employees with important context for understanding the beryllium
                standard. At the same time, the agency acknowledges that employees may
                be diagnosed with CBD in the absence of a confirmed positive BeLPT, and
                the beryllium standard allows for such a diagnosis. In the preamble to
                the general industry final rule, OSHA provides additional discussion of
                the provisions that allow for referral to a CBD diagnostic center and
                diagnosis with CBD in the absence of a confirmed positive blood BeLPT
                result (85 FR 42598).
                 Thus, following consideration of the record of comments on OSHA's
                proposed definition of beryllium sensitization (which includes the
                comments and response detailed in the beryllium general industry final
                rule, 85 FR 42596), OSHA is finalizing the definition as proposed in
                the 2019 NPRM. The addition of this definition for beryllium
                sensitization does not change employer obligations under paragraphs (k)
                and (m) and therefore maintains employee protections under the
                construction and shipyards standards for beryllium.
                CBD Diagnostic Center
                 This final rule defines a CBD diagnostic center to mean a medical
                diagnostic center that has a pulmonologist or pulmonary specialist on
                staff and on-site facilities to perform a clinical evaluation for the
                presence of CBD. The revised definition also states that a CBD
                diagnostic center must have the capacity to perform pulmonary function
                testing (as outlined by the American Thoracic Society), bronchoalveolar
                lavage (BAL), and transbronchial biopsy. In the revised definition, a
                CBD diagnostic center must have the capacity to transfer the BAL
                samples to a laboratory for appropriate diagnostic testing within 24
                hours and the pulmonologist or pulmonary specialist must be able to
                interpret the biopsy pathology and the BAL diagnostic test results.
                This definition is identical to the definition of CBD diagnostic center
                that OSHA proposed in the 2019 NPRM.
                 The revised definition of CBD diagnostic center differs from the
                former definition in a number of ways. First, whereas the 2017 final
                rule's definition specified only that a CBD diagnostic center must have
                a pulmonary specialist, OSHA is adding the term ``pulmonologist'' to
                clarify that either type of specialist is qualified to perform a
                clinical evaluation for the presence of CBD. Additionally, the 2017
                definition required that a CBD diagnostic center have an on-site
                pulmonary specialist. The revised definition states that the CBD
                diagnostic center must simply have a pulmonologist or pulmonary
                specialist on staff. This clarifies OSHA's intent that a pulmonary
                specialist must be available to the CBD diagnostic center, but need not
                necessarily be on site at all times.
                 In their comments on the proposed changes to the definition of CBD
                diagnostic center, NJH and ATS recommended that a pulmonologist,
                [[Page 53917]]
                occupational medicine specialist, or physician with expertise in
                beryllium disease conduct the clinical evaluation for CBD, and that a
                pulmonologist should be on staff or available to perform the
                bronchoscopy (Document ID 2211, pp. 3-4; OSHA-2018-0003-0022, p. 2;
                OSHA-2018-0003-0021, p. 2). According to NJH, clinics that regularly
                evaluate patients for CBD have physicians with experience in
                occupational medicine conduct the clinical evaluation for CBD, in
                conjunction with a pulmonologist who performs a bronchoscopy (Document
                ID 2211, pp. 3-4; OSHA-2018-0003-0022, pp. 2-3).
                 OSHA notes that, although the agency is requiring facilities to
                have a pulmonologist or pulmonary specialist on staff who is able to
                interpret the biopsy pathology and the BAL diagnostic test results,
                OSHA does not intend that all aspects of clinical evaluation for CBD
                must be performed by a pulmonologist or pulmonary specialist. In the
                preamble to the 2017 final rule, OSHA explained that the agency was
                defining a CBD diagnostic center as a facility with a pulmonary
                specialist ``on-site'' specifically to indicate that the specialist
                need not personally perform the BeLPT testing (82 FR at 2645).
                Moreover, paragraph (k)(7), which sets out the substantive requirements
                for the evaluation at the CBD diagnostic center, refers to
                recommendations of the ``examining physician,'' not necessarily the
                pulmonologist or pulmonary specialist.
                 Paragraph (b), in turn, defines physician or other licensed health
                care professional (PLHCP) as an individual licensed to provide some or
                all of the services required by paragraph (k). As such, some parts of
                the evaluation, such as lung function tests, might be performed by a
                certified medical professional other than a pulmonologist or pulmonary
                specialist. The arrangement that NJH describes as typical for clinics
                treating CBD patients, in that physicians with experience in
                occupational health conduct the clinical evaluation for CBD in
                conjunction with a pulmonologist who performs a bronchoscopy, is
                consistent with OSHA's intent for the definition of CBD diagnostic
                center and other provisions of the standard related to CBD diagnosis.
                Therefore, OSHA has determined that it is not necessary to revise the
                definition of CBD diagnostic center to require that the clinical
                evaluation for CBD be conducted by a pulmonologist, occupational
                medicine specialist, or physician with expertise in beryllium disease.
                 An additional change to the definition of CBD diagnostic center
                clarifies that the diagnostic center must have the capacity to perform
                pulmonary function testing (according to ATS criteria), bronchoalveolar
                lavage (BAL), and transbronchial biopsy. OSHA has determined that the
                former definition--which stated that the evaluation at the diagnostic
                center ``must include'' these tests--could have been misinterpreted to
                mean that the examining physician was required to perform each of these
                tests during every clinical evaluation at a CBD diagnostic center. The
                agency is not dictating which tests an evaluation at a CBD diagnostic
                center should include, but ensuring that CBD diagnostic centers have
                the capacity to perform these tests, which are commonly needed to
                diagnose CBD. Therefore, the agency is revising the definition to
                clarify that the CBD diagnostic center must simply have the ability to
                perform each of these tests when deemed appropriate. These changes
                clarify the definition of CBD diagnostic center, and OSHA expects they
                will maintain safety and health protections for workers.
                 NJH expressed concern that the proposed definition does not specify
                the tests to be performed at the CBD diagnostic center, but only that
                the CBD diagnostic center have the capacity to conduct the tests
                (Document ID 2222, Tr. 70-72). NJH commented that by specifying the
                required capacities of a CBD diagnostic center, rather than the
                contents of a CBD evaluation, OSHA's change to the definition may
                indicate that the clinical evaluation for CBD need not include certain
                aspects of a CBD evaluation. NJH, the Association of Occupational and
                Environmental Clinics (AOEC), and ATS recommended that, at minimum,
                examinations should include full pulmonary function testing (including
                lung volumes, spirometry and diffusion capacity for carbon monoxide),
                chest imaging, and cardiopulmonary exercise testing, and may also
                include bronchoscopy in some cases (Document ID 2211, p. 4; OSHA-2018-
                0003-0022, p. 3; OSHA-2018-0003-0028, p. 2; OSHA-2018-0003-0021, pp. 1-
                2). NJH recommended that OSHA require ATS recommendations for
                diagnostic evaluation, which the NJH stated include the BeLPT,
                pulmonary function testing and chest imaging; and in some cases
                bronchoscopy (Document ID 2211, p. 4; OSHA-2018-0003 0022, p. 3). In
                their comments on the general industry NPRM, Materion supported OSHA's
                intent to specify the required capacities of a CBD diagnostic center,
                rather than the contents of a CBD evaluation, in the definition of CBD
                diagnostic center (Document ID OSHA-2018-0003-0038, pp. 16-17).
                 OSHA believes that the concerns expressed by NJH are already
                covered by the standard, as discussed more thoroughly in the Summary
                and Explanation for paragraph (k), Medical Surveillance, in this final
                rule. First, paragraph (k)(3) sets the requirements for contents of an
                examination. For the initial and periodic medical examinations, OSHA
                already requires under (k)(3) that employees be offered: A physical
                exam with emphasis on the respiratory system and skin rashes; pulmonary
                function tests, performed in accordance with established guidelines by
                ATS, including forced vital capacity (FVC) and forced expiratory volume
                in one second (FEV1); a BeLPT or equivalent test; a low dose
                computed tomography (LDCT) scan, if recommended by the PLHCP; and any
                other test deemed appropriate by the PLHCP. OSHA believes this
                information should be available to the CBD diagnostic center upon
                request.
                 Second, paragraph (k)(7)--which establishes the substantive
                requirements for the evaluation at the CBD diagnostic center--also
                provides the examining physician at the CBD diagnostic center
                flexibility to determine which additional tests are appropriate. As
                explained below in the Summary and Explanation of paragraph (k)(7),
                OSHA is adding a provision (paragraph (k)(7)(ii)) to make clear that
                the employer must offer any tests that the examining physician at the
                CBD diagnostic center deems appropriate. The definition of CBD
                diagnostic center in paragraph (b) does not alter this requirement. In
                light of paragraph (k), the revised definition of CBD diagnostic center
                cannot reasonably be read to limit the types of tests available to the
                employee (see the summary and explanation for paragraph (k)(7) for a
                full discussion of this topic). Thus, after considering these comments,
                OSHA has decided to retain the proposed change to the definition of CBD
                diagnostic center.
                Chronic Beryllium Disease (CBD)
                 OSHA is also amending the definition of chronic beryllium disease
                (CBD). For the purposes of this standard, the agency is using the term
                chronic beryllium disease or CBD to mean a chronic granulomatous lung
                disease caused by inhalation of beryllium by an individual who is
                beryllium sensitized.
                 OSHA is finalizing the definition as proposed. It includes several
                changes to the 2017 final rule's definition of
                [[Page 53918]]
                chronic beryllium disease, which was ``a chronic lung disease
                associated with exposure to airborne beryllium'' (82 FR at 2645-46).
                The revisions serve to differentiate CBD from other respiratory
                diseases associated with beryllium exposure (e.g., lung cancer) and to
                make clear that beryllium sensitization and the presence of beryllium
                in the lung are essential in the development of CBD (see 82 FR at
                2492).
                 First, OSHA is adding the term ``granulomatous'' to the definition.
                ``Granulomatous'' is meant to indicate an infiltration of inflammatory
                cells (e.g., T-cells) leading to the focal collection of cells, and
                eventual creation of nodules in the lung (Ohshimo et al., 2017,
                Document ID 2171, p. 2; Williams and Williams, Document ID 2228, pp.
                727-30; ATS, Document ID 0364). The formation of the type of lung
                granuloma specific to a beryllium immune response can only occur in
                those with CBD (82 FR at 2492-502). Next, OSHA is removing the phrase
                ``associated with airborne exposure to beryllium'' and replacing it
                with ``caused by inhalation of airborne beryllium.'' This change is
                more consistent with the findings in the 2017 final rule that beryllium
                is the causative agent for CBD and that CBD only occurs after
                inhalation of beryllium (82 FR at 2513). Finally, OSHA is clarifying
                that CBD is caused by inhalation of airborne beryllium ``by an
                individual who is beryllium sensitized.'' Along with the revised
                definition of beryllium sensitization discussed above, this revision
                emphasizes to employers and employees the role that beryllium
                sensitization plays in the development of CBD.
                 NJH, USW, and Materion agreed that OSHA's definition of CBD should
                be clarified (Document ID 2211, p. 4; 2222, Tr. 50-51; Document ID
                OSHA-2018-0003-0038, p. 17; Document ID OSHA-2018-0003-0033, p. 5).
                Materion supported the changes that OSHA proposed, which it
                characterized as a necessary clarification to ensure the definition
                provided is specific to chronic beryllium disease (Document ID 2237,
                pp. 4-5; OSHA-2018-0003-0038, p. 17). USW similarly supported the
                proposed definition, stating that it clarifies the previous definition
                which ``could be read to apply to any chronic lung disease caused by
                beryllium, including lung cancer'' (Document ID OSHA-2018-00003-0033,
                p. 5). These comments reinforce OSHA's determination that adding the
                term ``granulomatous'' to the definition will better distinguish CBD
                from other occupationally associated chronic pulmonary diseases. As
                OSHA explained in the preamble to the 2017 final rule, the formation of
                the type of lung granuloma specific to a beryllium immune response can
                only occur in those with CBD (82 FR at 2492-502).
                 Several commenters expressed concern that the proposed definition
                of chronic beryllium disease does not provide sufficient information to
                guide the diagnosis of CBD, or that aspects of OSHA's proposed
                definition of CBD could complicate the diagnosis of CBD. Comments
                expressing such concern from NJH, ACOEM, ATS, DOSH, and NSSP are
                discussed in detail below. OSHA notes that the standard's definition of
                chronic beryllium disease is not intended to provide criteria for the
                diagnosis of CBD. The agency's intent is to provide readers who may
                have little or no familiarity with CBD with a general understanding of
                the term, not to provide diagnostic criteria for healthcare
                professionals. This is evident from the broadly written 2017 final rule
                definition of chronic beryllium disease: ``a chronic lung disease
                associated with exposure to airborne beryllium'' (82 FR at 2645-46).
                 Due to differences in individual cases and circumstances, medical
                specialists may need to apply somewhat different testing regimens and/
                or diagnostic criteria to different individuals they evaluate for CBD.
                Furthermore, the diagnostic tools and criteria available to medical
                specialists may change over time. As discussed in the summary and
                explanation for paragraph (k)(7), OSHA believes that the physician at
                the CBD diagnostic center should have the latitude to use any tests he
                or she deems appropriate for the purpose of diagnosing or otherwise
                evaluating CBD in a patient, and has revised paragraph (k)(7) to make
                this clear. Therefore, OSHA has determined that it is neither necessary
                nor appropriate to specify diagnostic criteria in the beryllium
                standard's definition of chronic beryllium disease. Instead, OSHA has
                decided to retain a definition that provides the reader with a general
                understanding of the term.
                 NJH and ATS commented that OSHA should adopt a definition of
                chronic beryllium disease based on the previously-mentioned 2014 ATS
                document on diagnosis and management of beryllium sensitization and CBD
                (Document ID 2211, p. 4; 2222, Tr. 50; OSHA-2018-0003-0021, p. 5). NJH
                suggested the following definition: ``Chronic beryllium disease (CBD)
                is a granulomatous inflammatory response in the lungs of an individual
                who is beryllium sensitized'' (Document ID 2211, p. 4).\5\ In the
                beryllium informal hearing, they appeared to object to the term
                ``granulomatous inflammation'' and to prefer the term ``granuloma
                inflammatory process'' (Document ID 2222, Tr. 50). NJH stated that OSHA
                should adopt a definition based on the ATS beryllium statement ``that
                says, `Chronic beryllium disease is a granuloma inflammatory process,'
                and note that this is different than granulomatous inflammation or
                granulomas. . . chronic beryllium disease is a granulomatous
                inflammatory process in the lungs of an individual who is beryllium
                sensitized'' (Document ID 2222, Tr. 50). NJH further stated that their
                proposed definition ``allows for some flexibility'' in diagnosing CBD
                (Document ID 2222, Tr. 50). OSHA notes that the ATS statement primarily
                discusses CBD as a granulomatous inflammatory response in the lungs
                (Document ID 0364).
                ---------------------------------------------------------------------------
                 \5\ In their comments on the general industry NPRM, NJH
                previously suggested that the agency define chronic beryllium
                disease as a disease ``characterized by evidence of granulomatous
                lung inflammation in an individual who is sensitized to beryllium.''
                According to NJH, this definition would allow for diagnosis based on
                different combinations of clinical evaluation results as detailed in
                the ATS Statement (Document ID OSHA-2018-0003-0022, p. 3). OSHA's
                response to NJH's new suggested definition also pertains to this
                previously suggested definition.
                ---------------------------------------------------------------------------
                 As discussed above, OSHA has determined that it is neither
                necessary nor appropriate to provide diagnostic criteria in the
                beryllium standard's definition of chronic beryllium disease. Instead,
                OSHA has decided to retain a definition that provides the reader with a
                general understanding of the term. OSHA believes that the definition
                the agency proposed--a chronic granulomatous lung disease caused by
                inhalation of airborne beryllium by an individual who is beryllium-
                sensitized--adequately conveys that CBD is granulomatous in nature, and
                that it is not necessary for the agency's purposes to further specify
                that it is an inflammatory process. OSHA has therefore decided not to
                adopt the definition that NJH suggested.
                 ACOEM objected to the inclusion of the term ``granulomatous'' in
                the definition of chronic beryllium disease (Document ID 2213, p. 3).
                ACOEM contended that CBD does not always include the presence of
                granulomas and the lung pathology is more consistent with ``mononuclear
                cell interstitial infiltrates.'' According to ACOEM, it is established
                in the medical literature that the lung pathology found in CBD does not
                always include granulomas; lung biopsies may not detect granulomas,
                either due to practical limitations of the
                [[Page 53919]]
                test or because the patient's stage of disease is too early (i.e., the
                cells of the immune system that form granulomas have accumulated in the
                lungs, but have not yet formed into clusters) (Document ID 2213, p.3).
                ACOEM expressed concern that, if OSHA's [a]ddition of the term
                ``granulomatous'' to the definition excludes cases where granulomas are
                not present, it ``may result in some workers being unnecessarily
                excluded from appropriate medical care under the OSHA rule, and may
                affect their ability to receive workers' compensation, due to the
                overly narrow definition'' (Document ID 2213 p. 3). ACOEM further noted
                that the presence of beryllium sensitization ``lends specificity to the
                diagnosis''; therefore, it is not necessary to use the term
                ``granulomatous'' for the sake of specificity in the definition.
                 OSHA disagrees with ACOEM's contention that including the term
                ``granulomatous'' in the agency's definition of chronic beryllium
                disease would be inaccurate or overly narrow, and could thereby prevent
                workers from obtaining appropriate medical care or benefits for CBD. To
                begin with, OSHA's definitions in paragraph (b) of the standard are
                intended only to clarify the meaning of terms that appear in the
                standard. The definition of chronic beryllium disease is written with
                the goal of providing readers of the standard, who may have little or
                no familiarity with CBD, with a general understanding of the term. The
                definition does not provide diagnostic criteria for healthcare
                professionals to follow when diagnosing and addressing CBD.
                 Moreover, ACOEM's concerns are unfounded because including the term
                ``granulomatous'' does not exclude cases of CBD where granulomas have
                not yet formed or are not detected by lung pathology. OSHA agrees with
                ACOEM that CBD includes mononuclear cell infiltrates and can be
                diagnosed in the absence of lung pathology findings of granulomas in
                the lung. As described in the Health Effects section of the 2017 final
                rule, CBD is a pathological continuum which results from lung exposure
                to beryllium. The continuum consists of an asymptomatic early response
                with the recruitment of inflammatory T-cells and other mononuclear
                cells through to the formation of granulomas and frank, chronic disease
                (82 FR at 2491-2502). However, the term ``granulomatous'' does not
                refer only to the presence of granulomas; the term ``granulomatous''
                inflammation is described in the literature as beginning with chronic
                inflammation predominated by mononuclear phagocyte cells leading to the
                eventual aggregation of these cells into focal lesions called
                granulomas (ATS, Document ID 0364; Ohshimo et al., 2017, Document ID
                2171, p. 2; Williams and Williams, 1983, Document ID 2198). OSHA finds
                that adding the term ``granulomatous'' to the definition of CBD,
                contrary to the concerns raised by ACOEM, does not imply that CBD
                cannot be diagnosed where granulomas have not yet formed or are not
                detected by lung pathology.
                 ACOEM also noted that ``the presence of beryllium sensitization (as
                measured in BeLPT using either blood or lung cells) lends specificity
                to the diagnosis,'' which makes including the term ``granulomatous''
                unnecessary (Document ID 2213, p. 3). OSHA disagrees. First, including
                the term ``granulomatous'' is consistent with the ATS statement ``the
                diagnosis of CBD is based on the demonstration of both BeS and
                granulomatous inflammation on lung biopsy.'' (Document ID 0364, p. e35,
                e43-e45, e55). Based on the ATS statement, NJH also recommended a
                definition of chronic beryllium disease that included a reference to
                ``granulomatous inflammation'' (Document ID 2211, p. 4).
                 Second, as noted in the summary and explanation section for the
                2020 general industry beryllium final rule (85 FR 42598), OSHA
                acknowledges that it may not always be possible to identify a worker
                for beryllium sensitization using the BeLPT as part of a diagnosis of
                CBD because the BeLPT can yield false-negative results in some
                individuals (see Document ID 0399). This means some individuals may
                actually be sensitized to beryllium even though they have a negative
                BeLPT result; therefore, there is value to adding the term
                ``granulomatous'' to lend further specificity. An examining physician
                should have the latitude to diagnose CBD even in the absence of a
                ``confirmed positive'' pattern of BeLPT results 85 FR 42598), for
                example, in the presence of lung inflammation. The latitude and
                flexibility provided under these standards affords physicians the
                discretion to diagnose CBD in patients that may not have the classic
                hallmarks of sensitization or CBD (e.g. positive BeLPT or granuloma),
                but have a work history of exposure to beryllium and an undiagnosed
                health issue. However, OSHA emphasizes that the definition of chronic
                beryllium disease is to inform the general reader of this preamble and
                final rule, and is not intended to guide physician diagnosis of CBD.
                 In their comments on the 2018 general industry NPRM, ATS
                recommended including diagnostic criteria in the definition, such as
                confirmation of an immune response to beryllium and granulomatous lung
                inflammation using lung biopsy, and that the definition emphasize the
                various approaches which may be used ``[d]epending on the clinical
                setting, feasibility of certain diagnostic tests, and degree of
                diagnostic certainty needed'' (Document ID OSHA-2018-0003-0021, p. 5).
                ATS also expressed concern that OSHA's proposed changes to the
                definition of chronic beryllium disease could create confusion in the
                diagnosis of CBD because, ``[w]hile beryllium sensitization is
                essential to the development of CBD, demonstrating beryllium
                sensitization, as well as granulomatous lung disease on lung pathology,
                can be challenging in certain settings'' (Document ID 0021, p. 5). DOSH
                stated that the proposed definition ``emphasizes beryllium
                sensitization as a factor in chronic beryllium disease in a manner that
                may be misleading'' and emphasized that individuals may be diagnosed
                with CBD without a confirmed positive BeLPT result. DOSH advocated that
                the definition of chronic beryllium disease ``ensure employers and
                medical providers are given a clear expectation of how beryllium
                conditions are properly identified'' (Document ID OSHA-2018-0003-0023,
                p. 2).
                 Although OSHA agrees with ATS and DOSH that diagnosing CBD does not
                always require confirmation of beryllium sensitization, the agency does
                not believe that references to sensitization should be excluded from
                the definition of chronic beryllium disease. OSHA first notes that
                neither DOSH nor ATS contend that OSHA's definition is inaccurate.
                Furthermore, as OSHA explained previously in its discussion of the
                beryllium sensitization definition, the agency believes that a correct
                understanding of the relationship between beryllium sensitization and
                CBD is key to workers' and employers' understanding of many provisions
                of the beryllium standard. By stating the role that sensitization plays
                in the development of CBD in the standard's definition of chronic
                beryllium disease, OSHA intends to convey clearly to the regulated
                community why protecting workers from becoming beryllium-sensitized is
                key to the prevention of CBD and why workers who are confirmed positive
                for beryllium sensitization should be offered both a clinical
                evaluation for CBD and medical removal protection.
                 OSHA acknowledges that it is not always necessary to identify a
                worker as confirmed positive for beryllium sensitization using the
                BeLPT as part of
                [[Page 53920]]
                a diagnosis of CBD and that the BeLPT can yield false-negative results
                in some individuals. For this reason, an examining physician should
                have the latitude to diagnose CBD even in the absence of a ``confirmed
                positive'' pattern of BeLPT results. As explained in the summary and
                explanation of paragraph (k)(7) of the beryllium final rule (2017),
                that provision gives the examining physician this latitude (82 FR at
                2704, 2709). Because the substantive provisions of the standard leave
                the examining physician discretion in diagnosing CBD, OSHA does not
                agree that acknowledging the role of beryllium sensitization in the
                development of CBD will result in diagnostic confusion. As stated
                above, the agency does not intend for the definition to be used for
                diagnostic criteria, but rather to add clarity to the standard and
                provide readers who may have little or no familiarity with CBD with a
                general understanding of the term.
                 NSSP recommended the following addition to OSHA's proposed
                definition of chronic beryllium disease: ``The presence of interstitial
                mononuclear cell (T cell) infiltrates (lymphocytosis) is characteristic
                of chronic beryllium disease'' (Document ID 0027, pp. 3-4). NSSP argued
                that the presence of these infiltrates on lung biopsy indicates the
                presence of chronic beryllium disease, and should therefore be included
                in the standard's definition (Document ID 0027, p. 4). OSHA disagrees.
                The agency believes that the term ``granulomatous'' sufficiently
                addresses the presence of T-cell infiltrates, which occur at an early
                stage in the development of granulomas (82 FR at 2492-2502). As
                discussed previously, OSHA's intent in defining chronic beryllium
                disease is to provide the reader a general understanding of what CBD
                is, rather than provide a technical definition for diagnostic use. The
                suggested addition is not necessary to describe the nature of CBD in
                general terms. With the addition of the term ``granulomatous,'' the
                definition is sufficiently specific for OSHA's purposes in the context
                of paragraph (b).
                 In summary, for the purposes of this standard OSHA is defining
                chronic beryllium disease as a chronic granulomatous lung disease
                caused by inhalation of airborne beryllium by an individual who is
                beryllium sensitized. This definition is identical to the definition of
                chronic beryllium disease OSHA proposed in 2019 and includes only minor
                changes from the definition included in the 2017 final standard. OSHA
                is providing this definition to enhance stakeholders' general
                understanding of the beryllium standard; it is neither intended nor
                suitable to provide guidance to medical professionals on the diagnosis
                of CBD. OSHA expects these changes to the 2017 definition of chronic
                beryllium disease will clarify the standard, and will therefore
                maintain safety and health protections for workers. After considering
                these comments and after reviewing the record as a whole (which
                includes the comments and responses detailed in the July 14, 2020,
                general industry final rule (82 FR 42602)), OSHA has decided to amend
                the definition of chronic beryllium disease (CBD) as proposed.
                Confirmed Positive
                 This final rule defines confirmed positive to mean (1) the person
                tested has had two abnormal BeLPT test results, an abnormal and a
                borderline test result, or three borderline test results, obtained
                within a three-year period; or (2) the result of a more reliable and
                accurate test indicating a person has been identified as having
                beryllium sensitization. The revised definition includes several
                changes to the 2017 definition of confirmed positive and one change
                from the definition of confirmed positive that OSHA proposed in the
                2019 NPRM.
                 First, the agency is removing the phrase ``beryllium
                sensitization'' from the first sentence of the definition, which
                previously stated that a person is confirmed positive if that person
                has beryllium sensitization, as indicated by two abnormal BeLPT test
                results, an abnormal and a borderline test result, or three borderline
                test results. OSHA intends that the term confirmed positive act only as
                a trigger for requirements in the standards, such as continued medical
                monitoring and surveillance for the purposes of these standards, and
                not as a general-purpose definition of beryllium sensitization. By
                removing the phrase ``beryllium sensitization'' from the first sentence
                of the definition, the agency hopes to avoid confusion resulting from
                scientific disagreements over whether certain test results, such as
                three borderlines, necessarily prove that sensitization has occurred.
                For purposes of the beryllium standards, any worker with the BeLPT test
                results specified in the definition of confirmed positive should be
                offered an evaluation for CBD with continued medical surveillance as
                well as the option of medical removal protection, even though some
                small percentage of workers who are confirmed positive by this
                definition may not in fact be sensitized to beryllium, as is the case
                for any diagnostic test (Middleton, et. al., 2008, Document ID 0480, p.
                4).\6\
                ---------------------------------------------------------------------------
                 \6\ In the preamble to the 2017 final rule, OSHA found that
                three borderline BeLPT results recognize a change in a person's
                immune system with respect to beryllium exposure based on Middleton
                et al.'s 2011 finding that three borderline BeLPT results have a
                positive predictive value (PPV) of over 90 percent (82 FR at 2501),
                and therefore the agency included three borderline results in the
                criteria for confirmed positive (82 FR at 2646). While Materion
                contests the findings of the Middleton et al study (2011) regarding
                three borderline BeLPTs, Materion was generally supportive of
                removing sensitization from the definition, stating that the agency
                ``wisely splits[s] the definition of beryllium sensitization, which
                is a medical determinant, from confirmed positive, which is a
                testing regimen outcome'' (Document ID 2237, pp. 3-4).
                ---------------------------------------------------------------------------
                 Both USW and Materion supported this proposed revision. USW
                supported removing the phrase beryllium sensitization because,
                ``[w]hile it is true that a confirmed positive result of BeLPT testing
                currently leads to a diagnosis of sensitization, linking the two in the
                same definition could lead to unintended hardships for beryllium
                workers'' (Document ID 2242, p. 3). At the December 3, 2019 public
                hearing, USW also explained that a finding of beryllium sensitization
                could, in some states, trigger a statute of limitations under laws
                governing claims for compensation for other adverse health effects
                (Document ID 2222, Tr. 24-25). According to USW, ``the word
                `sensitized' is more likely to trigger a statute-of-repose deadline for
                filing a tort suit than the words `confirmed positive,''' and should
                that happen, ``the worker would not be able to receive adequate
                compensation if they later developed chronic beryllium disease''
                (Document ID 2242, p. 3). Materion commented that ``OSHA's separation
                of beryllium sensitization from confirmed positive can increase the
                number of employees eligible to accept further medical testing by
                institutions such as NJH or to seek OSHA's medical removal option,'' as
                well as the number of employees ``who may choose to be medically
                monitored on a more routine basis at institutions such as NJH''
                (Document ID 2237, p. 4).
                 In its comments on the general industry NPRM, USW also commented
                that the former definition of confirmed positive had acted ``as a de
                facto definition of sensitization'' and that removing the phrase
                ``beryllium sensitization'' from this portion of the definition ensures
                that a finding of confirmed positive will trigger medical surveillance
                and medical removal protection, ``without an intermediate stop at a
                finding of sensitization'' (Document ID OSHA-2018-0003-0033, p. 5).
                Similarly, Materion commented in their response to the general industry
                [[Page 53921]]
                NPRM that the revised definition allows individuals with three
                borderline BeLPT results to obtain the protections of the standard,
                including evaluation for CBD and medical removal protection, without
                necessarily being ``declared sensitized'' (Document ID OSHA-2018-0003-
                0038, p. 18). Materion further asserted that the change enhances
                employee protection by increasing the number of persons eligible to go
                on to further testing (Document ID OSHA-2018-0003-0038, p. 19).
                 Several commenters disagreed with OSHA's proposal to remove the
                phrase ``beryllium sensitization'' from the definition of confirmed
                positive. NSSP generally expressed disagreement with OSHA's proposal to
                remove ``beryllium sensitization'' from the first part of the confirmed
                positive definition, but did not state the reasons for its concern
                (Document ID OSHA-2018-0003-0027, p. 3).
                 Several commenters expressed concern that OSHA's proposed revision
                would create confusion. NJH stated that removal of ``beryllium
                sensitization'' would cause confusion as to what the term ``confirmed
                positive'' refers, and stated that workers need to understand that, if
                they are confirmed positive, they have a specific T-cell mediated
                response to beryllium that can result in development of CBD (Document
                ID 2222, Tr. 64; 2211, p. 5). ACOEM commented that ``[s]eparating the
                definition of `confirmed positive' from the definition of beryllium
                sensitization is confusing, unnecessary, and contradicts the accepted
                terminology and definitions employed in the fields of immunology,
                beryllium medical research, and clinical practice . . .'' ACOEM further
                stated that, ``[i]n clinical practice, [the change] will add
                significant confusion, to the detriment of workers and patients,''
                because ``[t]he medical community is not accustomed to diagnosing a
                patient's medical condition as `confirmed positive,' '' and instead
                refers to patients as being ``beryllium sensitized'' based on ``the
                presence of confirmed positive BeLPTs.'' \7\ (Document ID 2213, p. 2).
                ---------------------------------------------------------------------------
                 \7\ ACOEM also stated that the proposed change would create
                confusion by creating ``misalignment with existing legislation,
                including the Energy Employee Occupational Illness Compensation
                Program Act (1999) and the U.S. Department of Energy's beryllium
                rule (Document ID 2213, p. 2). To the extent that ACOEM suggests
                that OSHA is obliged to adopt definitions that match those used in
                other statutes of federal regulations for the same or similar terms,
                ACOEM is mistaken. OSHA has discretion to adopt appropriate
                definitions for the terms in its beryllium standards, including the
                definition of confirmed positive, which serves as a trigger for
                certain provisions of the beryllium standards. As explained further
                below, OSHA does not agree that the definition of confirmed positive
                that it is adopting in this rule will result in confusion.
                ---------------------------------------------------------------------------
                 ATS and AOEC also expressed concern that, because the medically-
                accepted interpretation of BeLPT testing results is that they indicate
                beryllium sensitization, removing the phrase ``beryllium
                sensitization'' from the definition of confirmed positive may cause
                confusion about the condition to which confirmed positive refers
                (Document ID OSHA-2018-0003-0021, p. 3; OSHA-2018-0003-0028, p. 2). CEL
                cited to, and expressed support for, ATS' and AOEC's comments regarding
                this change, and also expressed concern that, after a worker leaves
                employment, their medical record might only state that they were
                ``confirmed positive,'' rather than ``beryllium sensitized,'' which
                could create confusion for medical personnel who may later evaluate or
                treat the worker (Document ID 2208, p. 5).
                 Commenters also expressed concern that removing ``beryllium
                sensitization'' from the definition could negatively affect workers'
                ability to obtain workplace protections and other benefits. NJH stated
                that removing ``beryllium sensitized'' from the definition of confirmed
                positive, in conjunction with OSHA's proposal to place a time
                constraint on confirmation testing results in the definition (discussed
                below), might reduce workers' ability to obtain medical testing and
                workplace protections that are required by the rule (Document ID 2243,
                p. 3). NJH also opposed the revised definition in their comments on the
                2018 general industry NPRM, asserting that the removal of the phrase
                ``beryllium sensitized'' could prevent individuals who meet the
                definition of being confirmed positive from being identified as
                sensitized (Document ID OSHA-2018-0003-0022, p. 4). ATS also stated
                (without explanation) that removing the term ``beryllium
                sensitization'' from the definition of confirmed positive would reduce
                worker protections (Document ID OSHA-2018-0003-0021, p. 3).
                 Additionally, NJH, ATS, and CEL expressed concern that removing
                ``beryllium sensitization'' from the definition of confirmed positive
                would adversely affect workers' ability to obtain workers compensation
                benefits. NJH commented that the proposed change, in conjunction with
                OSHA's proposal to place a time constraint on confirmation testing
                results (discussed below), would prevent individuals from being
                diagnosed with beryllium sensitization, which is medically compensable
                under workers' compensation programs in many states (Document ID 2243,
                p. 3). CEL cited to ATS's stated concern that removing the phrase
                ``beryllium sensitization'' would reduce workers' right to file for
                worker's compensation (Document ID 2208, p. 5 (citing 0021, p. 3)).
                 Commenters also expressed concern that the proposed revision of the
                confirmed positive definition was inconsistent with other parts of the
                standard. CEL and ACOEM claimed that the change would create an
                inconsistency with the definition of Chronic Beryllium Disease (CBD),
                which defines CBD as ``a chronic granulomatous lung disease caused by
                inhalation of airborne beryllium by an individual who is beryllium-
                sensitized'' (emphasis added) (Document ID 2208, p. 5; 2213, p. 2). CEL
                also expressed concern that ``the definition of beryllium sensitized no
                longer refers to the definition of `confirmed positive,' which defines
                the criteria for being determined beryllium sensitized.'' Additionally,
                CEL noted that, paragraph (k)(5)(i)(A) of the rule, which articulates
                the necessary contents of the written medical report given to the
                employee under the standard's medical surveillance requirements,
                ``equates `beryllium sensitization' with an employee's status as
                `confirmed positive' which is consistent with the original 2017
                standards, but not consistent with the decoupling of these terms in the
                current proposal'' (Document ID 2208, p. 5).
                 Following consideration of the concerns raised by these
                organizations, OSHA disagrees that removing the phrase ``beryllium
                sensitization'' from the first sentence of the definition of confirmed
                positive will create confusion, reduce worker protections, or conflict
                with other aspects of the regulatory text. The provisions of the
                standards intended to benefit workers who may be sensitized
                (specifically, evaluation at a CBD diagnostic center and medical
                removal protection) are available to all workers who meet the
                definition of confirmed positive. Therefore, removing the term
                ``beryllium sensitized'' from the first sentence of the definition will
                not change the access to these benefits for any workers. By removing
                the term ``beryllium sensitized'' from the first sentence of the
                definition, OSHA seeks to ensure that workers with three borderline
                BeLPT results (or other patterns of test results that some PLHCPs may
                consider ambiguous) will receive the benefits of the standard
                regardless of whether their PLHCP views their results as firm evidence
                of
                [[Page 53922]]
                sensitization.\8\ Furthermore, OSHA disagrees that removing the
                reference to ``beryllium sensitized'' will lead to confusion about what
                the BeLPT results are supposed to indicate because the second sentence
                of the definition of confirmed positive makes clear that a worker who
                has been diagnosed with beryllium sensitization would also meet the
                definition of confirmed positive: ``It [i.e., confirmed positive] also
                means the result of a more reliable and accurate test indicating a
                person has been identified as having beryllium sensitization.''
                ---------------------------------------------------------------------------
                 \8\ OSHA is also unpersuaded by the comments expressing concern
                that OSHA's revision of the definition of confirmed positive in the
                beryllium standards would affect workers' ability to obtain workers
                compensation benefits. ATS's comment did not explain how the
                definition of confirmed positive in the beryllium standard could
                affect worker's compensation claims, but at least one other
                commenter questioned the ATS's assertion (see Document ID 0038, p.
                19). NJH expressed concern that the change would prevent individuals
                from being diagnosed with beryllium sensitization, which would
                trigger their eligibility for benefits under some states' workers
                compensation programs (Document ID 2243, p. 3). OSHA intends for the
                definition of confirmed positive in paragraph (b) to serve only as a
                trigger for certain provisions of the beryllium standards. How OSHA
                defines this phrase for purposes of the beryllium standards in no
                way limits healthcare professionals' ability or incentive to
                diagnose beryllium sensitization.
                ---------------------------------------------------------------------------
                 OSHA also disagrees with the commenters' concern that the proposed
                definition will create inconsistencies within the standard. CEL's
                concern that removing the term ``beryllium sensitized'' from the first
                sentence of confirmed positive will create an inconsistency with
                paragraph (k)(5)(i)(A) because that provision ``equates `beryllium
                sensitization' with an employee's status as `confirmed positive' is
                misplaced. Paragraph (k)(5)(i)(A), which is not being changed in this
                final rule, requires that the licensed physician's written medical
                report for the employee include any detected medical condition, such as
                CBD or beryllium sensitization (i.e., the employee is confirmed
                positive, as defined in paragraph (b) of the standard), that may place
                the employee at increased risk from further airborne exposure. As
                explained above, the purpose of the agency's definition of confirmed
                positive is to establish the test results that trigger the benefits in
                the standards aimed at protecting potentially beryllium-sensitized
                individuals (specifically, an evaluation for CBD with continued medical
                surveillance, and the option of medical removal protection). The
                phrasing of the confirmed positive definition does not affect the
                relevant detectable medical conditions that physicians are instructed
                to include in their written reports under paragraph (k)(5)(i)(A). The
                reference to confirmed positive in paragraph (k)(5)(i)(A) is intended
                to signal that, where a physician has identified a worker as having
                beryllium sensitization, that individual also satisfies the definition
                of confirmed positive.
                 Nor does removing the reference to ``beryllium sensitized'' from
                the definition of confirmed positive create an inconsistency with the
                standards' definitions of chronic beryllium disease or beryllium
                sensitization. As discussed above, the definition of confirmed positive
                explains the test results that, in the context of these beryllium
                standards, triggers the benefits intended to protect individuals who
                may be beryllium-sensitized. Such results include both employees who
                are identified as having beryllium sensitization, and employees who
                have three borderline BeLPT results (or other patterns of test results
                that some PLHCPs may consider ambiguous) but may not be affirmatively
                identified by the physician as beryllium-sensitized. The definitions of
                beryllium sensitization and chronic beryllium disease (CBD) are
                informational definitions that do not trigger any specific protections
                in the standards, and are solely included to help readers generally
                understand those terms. The definition of chronic beryllium disease
                (CBD) clarifies that individuals that have CBD have beryllium
                sensitization, and the definition of beryllium sensitization explains
                that ``[w]hile not every beryllium-sensitized person will develop CBD,
                beryllium sensitization is essential for development of CBD.'' OSHA
                finds no conflict between these definitions and the definition of
                confirmed positive.
                 An additional change to the definition of confirmed positive
                provides that the findings of two abnormal, one abnormal and one
                borderline, or three borderline results need to occur from BeLPTs
                conducted within a three-year period. This change in the definition of
                confirmed positive differs from the proposal and is based on comments
                submitted to the record following publication of the 2018 NPRM for
                general industry and the 2019 NPRM for construction and shipyards.
                 The 2017 final rule did not specify a time limit within which the
                BeLPT tests that contribute toward a finding of ``confirmed positive''
                must occur. After publication of the 2017 final rule, stakeholders
                suggested to OSHA that the definition of confirmed positive could be
                interpreted as meaning that findings of two abnormal, one abnormal and
                one borderline, or three borderline results over any time period, even
                as long as 10 years, would result in the employee being confirmed
                positive and automatically referred to a CBD diagnostic center for
                evaluation. As discussed in the preamble to the 2017 standard, clinical
                evaluation for CBD involves bronchoalveolar lavage and biopsy (82 FR at
                2497) which, like all invasive medical procedures, carry risks of
                infection and other complications.\9\ Given such risks, and the
                possibility that some repeat abnormal or borderline results obtained
                over a long period of time could be false positives, it was not the
                agency's intent that workers with rarely recurring abnormal or
                borderline BeLPT results should necessarily proceed to evaluation at a
                CBD diagnostic center unless recommended to do so by their examining
                physician. At the same time, OSHA notes that under paragraph
                (k)(5)(iii), the licensed physician performing the BeLPT testing
                retains the discretion to refer an employee to a CBD diagnostic center
                if the licensed physician deems it appropriate, regardless of the BeLPT
                result.
                ---------------------------------------------------------------------------
                 \9\ Bronchoalveolar lavage is a method of ``washing'' the lungs
                with fluid inserted via a flexible fiberoptic instrument known as a
                bronchoscope, removing the fluid and analyzing the content for the
                inclusion of immune cells reactive to beryllium exposure (82 FR at
                2497).
                ---------------------------------------------------------------------------
                 In the 2019 NPRM, OSHA proposed that any combination of test
                results specified in the definition of confirmed positive must result
                from the tests conducted in one cycle of testing, including the initial
                BeLPT and the follow-up retesting offered within 30 days of an abnormal
                or borderline result (paragraph (k)(3)(ii)(E)). As outlined in proposed
                paragraph (k)(3)(ii)(E), an employee would be offered a follow-up BeLPT
                within 30 days if the initial test result is anything other than
                normal, unless the employee had been confirmed positive (e.g., if the
                initial BeLPT was performed on a split sample and showed two abnormal
                results). Thus, for example, if an employee's initial test result was
                abnormal, and the result of the follow-up testing offered to confirm
                the initial test result was abnormal or borderline, the employee would
                be confirmed positive. Alternatively, if the result of the follow-up
                testing offered to confirm the initial abnormal test result was normal,
                the employee would not be confirmed positive. Any additional abnormal
                or borderline results obtained from the next required BeLPT for that
                employee (typically, two years later) would not identify that employee
                as confirmed positive under the proposed modification to confirmed
                positive.
                [[Page 53923]]
                OSHA requested comments on the appropriateness of this proposed time
                period.
                 Several stakeholders, including Materion, NJH, ACOEM, AFL-CIO, CEL,
                and USW, submitted comments regarding OSHA's proposal to require that
                the test results specified in the agency's definition of confirmed
                positive must occur within a single testing cycle. OSHA also received
                comments from Materion, NJH, ATS, DOSH, NSSP, USW, and AOEC on this
                proposed revision in the 2018 NPRM for general industry.
                 Commenters focused on several aspects of the proposed timing.
                First, many of the comments focused on the logistics of OSHA's proposed
                change. NJH, ACOEM, AFL-CIO, USW, ATS, DOSH, AOEC, and NSSP all
                indicated that requiring results with a 30-day testing cycle could
                create logistical challenges, for example due to repeat testing
                requirements or for businesses in remote areas with access to limited
                healthcare facilities (Document ID 2211, pp. 5-7; 2213, pp. 2-3; 2244,
                pp. 17-18; OSHA-2018-0003-0033, p. 5; OSHA-2018-0003-0022, p. 4; OSHA-
                2018-0003-0021, p. 4; OSHA-2018-0003-0024, p. 1; OSHA-2018-0003-0027,
                p. 3). Materion agreed with these commenters that ``the 30 day initial
                testing period may not allow enough time to complete retesting of
                workers due to issues beyond the control of the employer or employee''
                (Document ID 2237, p. 5).\10\
                ---------------------------------------------------------------------------
                 \10\ In their comments on the 2018 general industry NPRM,
                Materion supported the proposed definition of confirmed positive,
                stating that a 30-day allowance for follow-up testing after a first
                abnormal or borderline BeLPT result is appropriate to ensure that
                testing is completed in a timely manner (Document ID OSHA-2018-0003-
                0038, p. 17).
                ---------------------------------------------------------------------------
                 In this final rule and preamble, OSHA clarifies that it did not
                intend that the initial and follow-up tests had to be completed and
                interpreted within 30 days. OSHA intended that the test results used to
                determine if a worker is confirmed positive be obtained during one
                cycle of testing (i.e., an initial or periodic examination), including
                follow-up testing conducted within 30 days of an abnormal or borderline
                result.
                 Secondly, stakeholders commented on the appropriateness of limiting
                the use of the BeLPT from one test cycle in determining if a worker is
                confirmed positive. Commenters from public health organizations raised
                concerns that limiting test results to one test cycle would affect the
                ability to identify workers who should be referred for a CBD evaluation
                and receive other protections under the standard. NJH stated that
                OSHA's proposal to place a time constraint on confirmation testing
                results would reduce workers' ability to obtain medical testing and
                workplace protections that are required by the rule.\11\ NJH proposed
                the following definition be used: ``Confirmed positive means the person
                tested has beryllium sensitization as demonstrated by two abnormal
                BeLPT test results, an abnormal and a borderline test result, three
                borderline test results or the result of a more reliable and accurate
                test for sensitization'' (Document ID 2243, p. 3).
                ---------------------------------------------------------------------------
                 \11\ As discussed above, NJH expressed concern that OSHA's
                proposed definition of confirmed positive could prevent individuals
                from being diagnosed with beryllium sensitization, and thereby
                prevent them from receiving workers' compensation benefits (Document
                ID 2243, p. 3). OSHA intends the definition of confirmed positive to
                serve only as a trigger for certain provisions of the beryllium
                standards. How OSHA defines this phrase for purposes of the
                beryllium standards in no way limits healthcare professionals'
                ability or incentive to diagnose beryllium sensitization.
                ---------------------------------------------------------------------------
                 Other public health organizations, including ACOEM, DOSH, ATS,
                NSSP, AOEC, and CEL, agreed with NJH that workers who are sensitized to
                beryllium may show varying test results over time, and restricting the
                time period for determining ``confirmed positive'' status to 30 days
                would cause sensitized individuals to go undetected (Document ID 2213,
                pp. 2-3; 2208, pp. 3-4; OSHA-2018-0003-0023, p. 2; OSHA-2018-0003-0021,
                p. 2; OSHA-2018-0003-0027, p. 3; OSHA-2018-0003-0028, p. 2). ACOEM
                commented that the 30-day cycle would exclude workers who might have
                confirmatory tests several years after the initial first positive
                result, and stated that there is potential for confirmatory results
                could take up to 10 years to occur. ACOEM also stated that ``[t]here is
                no justification or need for a restrictive time limit for the
                occurrence of confirmatory tests,'' but if OSHA determined that a time
                limit was needed as a practical matter, ACOEM stated that at least
                three years should be permitted for repeat testing to identify
                confirmed positive results (Document ID 2213, p. 2).
                 ATS and AOEC recommended that results from tests performed up to at
                least three years after the initial abnormal or borderline test result
                should be used to determine whether the person is confirmed positive
                for beryllium sensitization (Document ID OSHA-2018-0003-0021, p. 2;
                OSHA-2018-0003-0028, p. 2). ATS stated that a timeframe of at least
                three years, which encompasses two rounds of regularly scheduled
                testing required biennially by the beryllium standard, would adequately
                address its concerns regarding logistical feasibility, would improve
                diagnostic accuracy, and would help ensure that sensitized workers are
                identified (Document ID OSHA-2018-0003-0021, p. 4). The ATS Statement
                on beryllium sensitization recommends a three-year testing cycle to
                confirm beryllium sensitization (Document ID 0364, p. e35). AOEC agreed
                that consideration of BeLPT test results obtained during a time period
                of at least three years ``will increase the potential that workers are
                accurately diagnosed with beryllium sensitization [and] will receive
                the necessary care'' (Document ID OSHA-2018-0003-0028 p. 2). NABTU
                noted that the Department of Energy's (DOE) Building Trades Screening
                Program also uses a three year testing cycle to confirm workers
                positive for sensitization (Document ID 2236, p. 2). CEL also commented
                that ``OSHA should significantly lengthen the period allowed between
                initial and confirmatory testing and develop a testing protocol that is
                both practicable and based on science'' (Document ID 2208, p. 4).
                 The approaches recommended by the ATS and the AOEC are similar to
                the approach used by NJH in providing medical surveillance consultation
                to workforces that use beryllium. NJH stated that, if an individual's
                BeLPT results are abnormal and normal on their initial round of BeLPT
                testing, they will usually request another BeLPT within a month. If the
                result of that test is normal, they do not request further testing
                until the next regularly scheduled BeLPT. If the result of the next
                regularly scheduled BeLPT comes back abnormal, they refer the worker
                for clinical evaluation even though the tests are separated by the two-
                year testing cycle (Document ID OSHA-2018-0003-0022, p. 5).
                 NJH submitted new, unpublished evidence to the record supporting
                the appropriateness of extending the test period to at least three
                years (Document ID 2243, p. 5). NJH's unpublished data was collected
                from patients that were ultimately diagnosed with CBD by either NJH or
                Oak Ridge Associated Universities (ORAU). The data (as reported in
                Tables 1 and 2 below) shows the timeframe from the initial abnormal
                BeLPT to the second abnormal BeLPT that is required to trigger a
                clinical evaluation for CBD (Document ID 2243, p. 5).
                [[Page 53924]]
                 Table 1--NJH Days To Confirmed Positive
                ------------------------------------------------------------------------
                 Number Percent
                 Number of days confirmed confirmed
                ------------------------------------------------------------------------
                30...................................... 44 23
                60...................................... 93 48
                90...................................... 122 63
                120..................................... 136 70
                150..................................... 144 74
                180..................................... 155 80
                1 year.................................. 169 87
                2 years................................. 181 93
                3 years................................. 186 96
                > 3 years............................... 194 100
                ------------------------------------------------------------------------
                 Table 2--ORAU Days To Confirmed Positive
                ------------------------------------------------------------------------
                 Number Percent
                 Number of days confirmed confirmed
                ------------------------------------------------------------------------
                30...................................... 42 17
                60...................................... 107 44
                90...................................... 126 52
                120..................................... 139 58
                150..................................... 147 61
                180..................................... 148 61
                1 year.................................. 182 76
                2 years................................. 201 83
                3 years................................. 206 85
                > 3 years............................... 241 100
                ------------------------------------------------------------------------
                Tables 1 & 2 adapted from Document ID 2243, p. 5.
                 As indicated by the evidence in Tables 1 and 2, many workers who
                develop CBD have abnormal or borderline results that do not immediately
                repeat upon retesting. To the contrary, many CBD patients have a series
                of tests which alternate between normal and abnormal. BeLPT data from
                Table 1, based on NJH's extensive experience, show that the BeLPT does
                not yield consistently abnormal results among CBD patients. Of 194
                patients diagnosed with CBD at NJH, the length of time between abnormal
                results ranged from 14 days to 5.8 years, with a 95th percentile of 2.9
                years. In this group, 150 patients (or 77 percent) would not have been
                evaluated for CBD if two abnormal BeLPT results were required to occur
                within a 30-day testing cycle (Document ID 2243, p. 5; OSHA-2018-0003-
                0022, p. 5). Similar findings are shown in Table 2 (BeLPT data from
                ORAU, also submitted by NJH (Document ID 2238, p. 5)). Data from Table
                2 indicates that 83 percent (199 patients) of individuals who went on
                to develop CBD would not have been evaluated for CBD if two abnormal
                BeLPT results were required to occur within a 30-day testing cycle
                (Document ID 2243, p. 5).
                 Although the information NJH submitted to the record is
                unpublished, their findings are consistent with published studies.
                Kreiss et al. (1997) reported that nine individuals had initial
                abnormal BeLPT results followed by two normal tests; six of those
                individuals were re-tested approximately one year later and four were
                confirmed positive for beryllium sensitization based on abnormal BeLPT
                results (Document ID 1360, pp. 610-12). These findings suggest a high
                rate of false-negative results and are consistent with results reported
                in a study by Stange et al. (2004). That study found an average false-
                positive rate of 1.09 percent, and a false-negative rate of 27.7
                percent for the BeLPT (Document ID 1402, p. 459).
                 Stakeholders provided similar comments, in response to OSHA's
                proposed definition of confirmed positive in the 2018 general industry
                NPRM, which was identical to the revised definition of confirmed
                positive proposed in the 2019 NPRM for construction and shipyards. For
                example, NSSP cited ORAU data (the same data submitted by NJH and shown
                in Table 2) from healthcare providers to demonstrate that a 30-day
                testing cycle is insufficient to properly identify sensitized workers.
                NSSP noted that, in over 20 years of conducting BeLPTs in worker
                populations, ORAU observed approximate median times of 45 days (range
                of 3 days to 16 years) between first and second abnormal tests, 1.5
                years (range of 30 days to 11 years) for the abnormal/borderline test
                combination and 1 year (range of 30 days to 11 years) for three
                borderlines (Document ID OSHA-2018-0003-0027, p. 3). Under the proposed
                30-day requirement, the NSSP stated that the majority of workers who
                have been identified as sensitized in the past would not meet the
                proposed definition of confirmed positive (Document ID OSHA-2018-0003-
                0027, p. 3).
                 Following consideration of the comments and of the new evidence
                submitted to the record following the proposal, OSHA is convinced that
                some workers who are ultimately found to be sensitized to beryllium or
                diagnosed with CBD may have alternating abnormal and normal BeLPT
                results, and that the time period for abnormal or borderline results to
                repeat can be months or years. OSHA is also convinced that requiring
                two abnormal, an abnormal and borderline, or three borderline results
                to occur in one cycle of an initial or periodic exam before an employee
                can be confirmed positive could result in beryllium sensitization or
                CBD going undetected in many employees. This is demonstrated by the
                unpublished data submitted by NJH showing that a substantial percentage
                of individuals with CBD (77 percent) may not have been referred for
                further testing based on results obtained within a 30-day cycle of
                testing and is confirmed by the data from ORAU that NSSP presented in
                response to the 2018 general industry NPRM (85 FR42605). Therefore,
                OSHA finds that its proposed change would have the unintended and
                unacceptable consequence of reducing employee protections because some
                employees who are sensitized or have CBD would be deprived of the
                benefits available through the standard, such as a timely evaluation at
                a CBD diagnostic center. In addition, requiring that results be
                obtained in one test cycle is not consistent with the approaches
                currently applied or supported by the medical community.
                 For these reasons, OSHA is revising the definition of confirmed
                positive to specify that the findings of two abnormal, one abnormal and
                one borderline, or three borderline results must be obtained from
                BeLPTs conducted within a three-year period. OSHA agrees with the ATS
                and the AOEC that a three-year period will facilitate the
                identification of sensitized workers enrolled in medical surveillance
                (see Document ID OSHA-2018-0003-0022, p. 5; OSHA-2018-0003-0028, p. 2;
                Document ID 0364, p. e35). In addition, this approach is consistent
                with the practices and recommendations from the public health
                community, including NJH and DOE, which provides beryllium-related
                medical surveillance consultation. OSHA believes that allowing a worker
                to be confirmed positive based on BeLPT results obtained over a three-
                year time period strikes a reasonable balance that would allow a timely
                evaluation for CBD, while at the same time, maintaining OSHA's original
                intent that a confirmed positive finding not be based on results
                obtained over an indefinite time period.
                 OSHA emphasizes that this revision does not modify the requirements
                of paragraph (k)(3)(ii)(E). Under that paragraph, if the results of the
                BeLPT are other than normal, a follow-up BeLPT must be offered within
                30 days of receiving the results, unless the employee has been
                confirmed positive. Only other than normal BeLPT results must be
                followed up within 30 days of the same test cycle (i.e., an initial or
                periodic medical examination).
                 As an example, an employee who receives a borderline result during
                one periodic examination conducted in 2020 would be retested within 30
                days, and if the follow-up test is normal, testing would stop. That
                employee would be offered another BeLPT at the next
                [[Page 53925]]
                periodic examination conducted in 2022. However, if the result of the
                2022 test is borderline, the employee would be retested within 30 days
                of that test result receipt, and if the follow-up test is borderline,
                the employee would be confirmed positive because of receiving three
                borderline tests within three years. A three-year period for the
                employee to be confirmed positive would ensure sufficient time for such
                follow-up tests that may need to be conducted over two cycles of
                medical examinations.
                 In their comments on the 2018 NPRM for general industry, the U.S.
                Department of Defense (DOD) recommended changing the term ``confirmed
                positive'' to another term such as ``confirmed non-negative,''
                ``confirmed finding of concern,'' or ``pattern of concern.'' According
                to the DOD, the term ``confirmed positive'' typically ``implies an
                initial positive test that was repeated with another test or another,
                more sensitive test, which confirms the initial positive test result''
                (Document ID OSHA-2018-0003-0029, p. 2). As OSHA explained in the
                general industry final rule Summary and Explanation (85 FR 42606),
                however, the CBD literature, commonly treats individuals as confirmed
                positive for sensitization through sequentially conducted BeLPTs (see,
                for example, the ATS Statement on Diagnosis and Management of Beryllium
                Sensitivity and Chronic Beryllium Disease, ATS 2014, Document ID 0364,
                p. e41; see also Document ID 1543, 0603, 0398, 1403, 1449).
                Additionally, OSHA again emphasizes that terms defined in the beryllium
                standards are defined only for purposes of the standard and are not
                intended as diagnostic, scientific, or all-purpose definitions. OSHA
                believes that its definition of confirmed positive clearly indicates
                what that term means for purposes of the beryllium standards and
                therefore disagrees with DOD's concern that the term may cause
                confusion. Accordingly, OSHA is retaining the term ``confirmed
                positive'' in this final standard.
                Emergency
                 Finally, OSHA proposed to remove references to the term emergency
                throughout the construction and shipyards standards, including the
                definition in paragraph (b). The agency explained that, unlike in
                general industry, the construction and shipyards industries--where
                exposure to beryllium is almost exclusively limited to trace quantities
                from abrasive blasting and welding operations--do not have emergencies
                in which exposures to beryllium will differ from the normal conditions
                of work. Specifically, OSHA reasoned that an uncontrolled release of
                airborne beryllium in these industries (such as a release resulting
                from a failure of the blasting control equipment, a spill of the
                abrasive blasting media, or failure of the ventilation system for
                welding operations) would occur only during the performance of routine
                tasks already associated with the airborne release of beryllium; that
                is, during abrasive blasting or welding processes. The agency explained
                that it anticipates employees working in the immediate vicinity of an
                uncontrolled release of airborne beryllium in these contexts would
                already be protected from exposure by the standards' existing
                requirements for respiratory protection (paragraph (g)), medical
                surveillance (paragraph (k)), and hazard communication (paragraph (m))
                due to their existing exposure to airborne beryllium (84 FR at 53909;
                see also id. at 53912, 53918-20).
                 Accordingly, OSHA preliminarily determined that no requirements
                should be triggered for emergencies in construction and shipyards and
                proposed to remove references to emergencies in provisions related to
                respiratory protection (paragraph (g)), medical surveillance (paragraph
                (k)), and hazard communication (paragraph (m)). The agency also
                preliminarily determined that without these provisions it would be
                unnecessary to define the term emergency in paragraph (b) (84 FR
                53909).
                 Some commenters objected to the proposed removal of provisions
                relating to emergencies. Specifically, these commenters took issue with
                OSHA's determination that an uncontrolled release of beryllium in the
                construction and shipyards industries would not create exposures that
                differ from normal operations. For a full discussion of these comments
                and the agency's response, see the summary and explanation for
                paragraph (g). In short, the agency is not persuaded that the types of
                uncontrolled releases that necessitated emergency provisions in the
                general industry standard are present in the construction and shipyards
                industries. Accordingly, OSHA is finalizing its proposal to remove all
                references to ``emergency'' or ``emergencies'' throughout the
                construction and shipyards standards. Because those terms no longer
                appear in the standards' requirements, OSHA is also finalizing its
                proposal to remove the definition of the term ``emergency'' from
                paragraph (b).
                 This final rule makes one additional revision to paragraph (b) in
                both standards. As explained in the Summary and Explanation for
                paragraph (j), OSHA is removing the reference to HEPA-filtered
                vacuuming in the housekeeping requirements of revised paragraphs (j)(1)
                and (2). In the NPRM, OSHA neglected to remove the definition for high-
                efficiency particulate air (HEPA) filter in paragraph (b), despite the
                fact that there are no longer any provisions in either standard that
                reference HEPA-filters. OSHA has removed this definition in this final
                rule. This change has no substantive effect on any requirements in the
                standards and OSHA considers this a technical correction.
                Paragraph (f) Methods of Compliance
                 Paragraph (f) of the beryllium standards for construction and
                shipyards requires employers to implement methods for reducing employee
                exposure to beryllium through a detailed written exposure control plan,
                engineering and work practice controls, and a prohibition on rotating
                employees to achieve compliance with the PEL. In the 2017 final rule,
                OSHA determined that written plans would ``be instrumental in ensuring
                that employers comprehensively and consistently protect their
                employees'' (82 FR at 2668). OSHA also concluded that requiring
                reliance on engineering and work practice controls, rather than on
                respirator use, is consistent with good industrial hygiene practice and
                with OSHA's traditional approach to health standards (82 FR at 2672).
                 While extending these provisions to the construction and shipyards
                industry in the 2017 final rule, OSHA acknowledged that exposures to
                beryllium in these industries are limited primarily to a few
                operations, abrasive blasting in construction and shipyards and some
                welding operations in shipyards (82 FR at 2637-38). With respect to
                abrasive blasting, while the extremely high exposures to airborne
                particulate during the blasting operation can expose workers to
                beryllium in excess of the PEL, the blasting materials contain only
                trace amounts of beryllium (materials such as coal slag normally
                contain approximately 0.11 [micro]g/g or 0.00001%) (see 2017 FEA,
                Document ID 2042, p. IV-632, Table IV.69; 82 FR at 2638). Moreover,
                OSHA had evidence of beryllium exposure during only limited welding
                operations in shipyards (only 4 of 127 sample results showed detectable
                levels of airborne beryllium) (see 2017 FEA, Document ID 2042, p. IV-
                580). Nonetheless, OSHA applied the same requirements to these
                industries as to general industry, where the operations with beryllium
                exposure are significantly more varied and employees
                [[Page 53926]]
                are exposed to materials with significantly higher beryllium content.
                 In the 2019 NPRM, OSHA proposed to revise the requirements in
                paragraph (f) in light of the very narrow set of affected operations
                and the limited extent of beryllium exposure in the construction and
                shipyards industries. OSHA explained that some provisions in paragraph
                (f)--although appropriate in the general industry context--may be
                unnecessary to protect employees in the construction and shipyards
                industries (84 FR at 53909-10). Likewise, OSHA preliminarily determined
                that provisions relating solely to dermal contact with beryllium should
                not apply in the construction and shipyards industries, where exposures
                primarily involve materials containing only trace amounts of beryllium
                (84 FR at 53909) or, in the case of welding, where OSHA believes the
                process and materials do not present a dermal contact risk (see 84 FR
                at 53906). Accordingly, OSHA proposed several revisions to both
                paragraph (f)(1) (Written exposure control plan) and (2) (Engineering
                and work practice controls) in the construction and shipyards
                standards.
                 For both the construction and shipyards beryllium standards,
                paragraph (f)(1) in this final rule requires the employer to establish,
                implement, and maintain a written exposure control plan that includes:
                a list of operations and job titles reasonably expected to involve
                exposure to beryllium; a list of engineering controls, work practices,
                and respiratory protection required by paragraph (f)(2); and a list of
                personal protective clothing and equipment required by paragraph (h)
                (see paragraphs (f)(1)(i)(A), (B) and (C), respectively). For the
                construction standard, the written plan must also include procedures to
                restrict access to work areas where exposures to beryllium could
                reasonably be expected to exceed the TWA PEL or STEL (paragraph
                (f)(1)(i)(D)). Both the construction (paragraph (f)(1)(i)(E)) and
                shipyards (paragraph (f)(1)(i)(D)) standards require the employer to
                include procedures to ensure the integrity of each containment used to
                minimize exposures to employees outside of containments (such as tarps
                or structures used to keep sandblasting debris within an enclosed area
                during abrasive blasting operations). Paragraphs (f)(1)(ii) and (iii)
                further provide requirements for maintaining, reviewing, and evaluating
                the written exposure control plan and providing access to the plan to
                each employee who is, or can reasonably be expected to be, exposed to
                airborne beryllium. In the construction standard, the written exposure
                control plan must be implemented by a competent person, as defined by
                paragraph (b) (paragraph (e)(2)).
                 Paragraph (f)(1) in this final rule contains several changes from
                the prior standards, as proposed in the December 2019 NPRM. First, OSHA
                proposed to revise paragraph (f)(1)(i)(A) by removing the words
                ``airborne'' and ``or dermal contact with'' as qualifiers for exposure
                to beryllium, so as to require simply a list of operations and job
                titles reasonably expected to involve exposure to beryllium. Second,
                OSHA proposed to revoke paragraphs (f)(1)(i)(B) and (C), which required
                additional lists of operations and job titles involving exposure at or
                above the action level and above the TWA PEL or STEL, respectively.
                OSHA reasoned that, given the small number of operations with beryllium
                exposure in construction and shipyards, the list of operations and job
                titles in these categories would be the same as those required by
                paragraph (f)(1)(i)(A). As such, any additional lists would be
                unnecessary and redundant (84 FR at 53910-11).
                 OSHA also proposed to revoke the requirements that the employer
                include in the written exposure control plan procedures for minimizing
                cross-contamination (paragraph (f)(1)(i)(D)) and procedures for
                minimizing the migration of beryllium within or to locations outside
                the workplace (paragraph (f)(1)(i)(E)) (84 FR at 53910). OSHA explained
                that the original intent of these requirements was to ensure that
                workers not involved in beryllium-related operations would not be
                unintentionally exposed to beryllium in excess of the PEL. With respect
                to the construction standard, OSHA reasoned that the requirement to
                include procedures in the written exposure control plan to restrict
                access to work areas where exposures to beryllium could reasonably be
                expected to exceed the TWA PEL or STEL (formerly paragraph (f)(i)(E),
                renumbered as (f)(i)(D)), along with the requirement that these
                procedures be implemented by a competent person (paragraph (e)(2)),
                would be sufficient to control cross-contamination and migration of
                beryllium from abrasive blasting operations. For the shipyard standard,
                OSHA retained requirements for regulated areas (paragraph (e)), which
                require that employers designate areas where exposures to beryllium
                could exceed the PELs and limit access to authorized employees. To
                further limit cross-contamination and migration, OSHA proposed to add a
                new paragraph in both the construction ((f)(1)(i)(E)) and shipyards
                ((f)(1)(i)(D)) standards to require that the written exposure control
                plan include procedures to ensure the integrity of each containment
                used to minimize exposures to employees outside the containment (such
                as tarps or structures used to keep sandblasting debris within an
                enclosed area during abrasive blasting operations).
                 OSHA next proposed to remove the requirement that the employer
                include in the written exposure control plan procedures for removing,
                laundering, storing, cleaning, repairing, and disposing of beryllium-
                contaminated personal protective clothing and equipment, including
                respirators (paragraph (f)(1)(i)(H)), because the agency had also
                proposed to remove several requirements pertaining to such procedures
                (84 FR at 53911). Specifically, OSHA proposed to remove the
                requirements that the employer ensure that: Beryllium-contaminated PPE
                is stored and kept separate from street clothes and that storage
                facilities prevent cross-contamination as specified in the written
                exposure control plan (paragraph (h)(2)(iii)); beryllium-contaminated
                PPE is only removed from the workplace by employees who are authorized
                to do so for the purpose of laundering, cleaning, maintaining, or
                disposing of such PPE (paragraph (h)(2)(iv)); PPE removed from the
                workplace for laundering, cleaning, maintenance, or disposal be placed
                in closed, impermeable bags or containers and labeled appropriately
                (paragraph (h)(2)(v)); and any person or business entity who launders,
                cleans or repairs PPE required by the standards be informed, in
                writing, of the potentially harmful effects of beryllium and of the
                need to handle the PPE in accordance with OSHA's beryllium standards
                (paragraph (h)(3)(iii)). With the proposed removal of those paragraphs,
                the remaining requirements that would relate to paragraph (f)(1)(i)(H)
                include paragraphs (h)(2)(i) and (ii), pertaining to removal of PPE;
                paragraph (h)(3)(i), pertaining to cleaning and maintenance of PPE; and
                paragraph (h)(3)(ii), pertaining to methods of removing beryllium from
                PPE. In light of the proposed removal of several of the requirements
                for removing, laundering, storing, cleaning, repairing, and disposing
                of beryllium-contaminated PPE, OSHA stated that it believed it
                unnecessary to include such procedures in the written plan (84 FR at
                53911).
                 Finally, as with paragraph (f)(1)(i)(A), OSHA proposed to revise
                paragraph (f)(1)(ii)(B) to refer simply to ``exposure to'' rather than
                ``airborne exposure to or dermal contact with'' beryllium (84 FR
                [[Page 53927]]
                at 53911).\12\ OSHA's proposal to revise this paragraph, which
                previously required the employer to review, evaluate, and update the
                written exposure control plan, as necessary, when notified that an
                employee shows signs or symptoms associated with airborne exposure to
                or dermal contact with beryllium, is consistent with other paragraphs
                where the agency is simplifying the language in a similar manner (e.g.,
                paragraphs (k)(3)(ii)(A) and (k)(4)(i), Medical surveillance) and is
                not intended to alter the meaning of the provision. OSHA received a
                number of comments on its proposed revisions to paragraph (f). These
                comments and OSHA's final determinations are discussed below.
                ---------------------------------------------------------------------------
                 \12\ In the Amendments to Standards section of the NPRM (84 FR
                at 53951-54), which identifies precisely how the proposal would
                amend the Code of Federal Regulations, OSHA inadvertently failed to
                remove the word ``airborne'' as a qualifier for ``exposure'' in
                paragraph (f)(1)(ii)(B) of both standards. However, the summary and
                explanation of paragraph (f) clearly identified OSHA's intent to
                remove both ``airborne'' and ``dermal contact with'' from the
                provision and leave simply ``exposure to beryllium'' (see 84 FR at
                53911). The only commenter to address the change referred to the
                correct language (NJH, Document ID 2211, p. 9). Accordingly, OSHA
                considers this a harmless error and has corrected the appropriate
                language in the Amendments to Standards section of this final rule.
                ---------------------------------------------------------------------------
                Comments on the Nature and Extent of Beryllium Exposure in the
                Construction and Shipyards Industries
                 A primary issue raised by several commenters, both with respect to
                the proposed changes to paragraph (f) and to the rest of the proposal,
                involved whether OSHA has appropriately characterized the jobs and
                operations in the construction and shipyards industries that present
                beryllium exposures of concern. On the one hand, the National
                Electrical Contractors Association (NECA), the National Demolition
                Association (NDA), and the Construction Industry Safety Coalition
                (CISC) argued that a written exposure control plan is unnecessary in
                the construction industry in light of the limited operations that
                create exposures of concern. Specifically, NECA contended that
                beryllium exposure in construction is limited to abrasive blasting, and
                therefore ``promulgating a rule that would require all employers to
                document and implement a written exposure control plan for beryllium
                creates additional and undue burdens on employers and employees in the
                construction industry'' (Document ID 2209, p. 1). CISC and NDA both
                stated that, in order to create a written exposure control plan,
                construction employers ``will be required to assess all workplace
                exposures, jobs, tasks, and work to be performed to determine whether
                beryllium is present in trace amounts'' (Document ID 2203, p. 16; 2205,
                p. 2). According to CISC, this is a particular problem in the
                construction industry because of the ``range of exposures that could
                exist as a result of naturally occurring beryllium or airborne
                exposures of beryllium from aggregate or other components of
                construction material containing trace amounts of beryllium'' (Document
                ID 2203, p. 2). Like NECA, CISC argued that it would be inappropriate
                to require employers to engage in the ``daunting task'' of analyzing
                beryllium exposures on their worksites, given that OSHA has not
                identified exposures of concern in construction outside of abrasive
                blasting with certain media (Document ID 2203, p. 16). NDA echoed CISC,
                asserting that this would be an ``unnecessary burden'' and
                ``inappropriate'' in the construction industry (Document ID 2203, p.
                2).
                 CISC suggested that, instead of including a written exposure
                control plan provision in the beryllium standard for construction, OSHA
                should consider adding new requirements to paragraph (f) of the
                ventilation standard for construction (29 CFR 1926.57) that set forth
                additional protective measures to be used when abrasive blasting with
                media containing https://www.lrb.usace.army.mil/Missions/HTRW/FUSRAP/Luckey-Site); construction
                trades workers exposed to beryllium in DOE facilities (Welch et al.,
                2004 & 2013); workers performing clean-up of beryllium-using sites
                (Sackett et al., 2004); workers grinding beryllium-composite tools
                (Kreiss et al., 1993); and workers resurfacing copper-beryllium tools
                (Mikulski et al, 2011) (Document ID 2211, p. 7) (see detailed
                discussion of studies later in this section). NJH also noted,
                anecdotally, that it has diagnosed CBD in contract construction workers
                who worked in primary beryllium and beryllium manufacturing facilities
                (Document ID 2211, p. 7).
                 AFL-CIO similarly indicated that construction workers such as
                laborers, welders, carpenters, surveyors, and electricians involved in
                demolition, renovation, maintenance, repair, and construction projects
                performed in general industry sites where beryllium was previously
                used, as well as those who may use non-sparking tools, could be exposed
                to beryllium (Document ID 2210, p. 5; 2239, p. 1). ACOEM likewise
                argued that workers in the construction industry can be exposed from
                decommissioning and demolition work (Document ID 2213, p. 3). Some
                members of Congress also identified the maintenance of non-sparking
                tools and working with unspecified beryllium alloys in high-tech naval
                vessels as activities that expose workers to materials containing
                beryllium above trace levels (Document ID 2208, p. 6).
                 Relying largely on studies performed at Department of Energy
                nuclear weapon sites (some of the same studies cited by NJH), NABTU
                commented that workers performing maintenance, renovation, repair, and
                demolition in beryllium processing facilities may be exposed to
                residual beryllium in ventilation systems, floors, insulation
                materials, and in floor crevices (Document ID 2202, p. 2; 2240, p. 3).
                Referencing OSHA's decision in the 2017 final rule to apply the
                construction standard to all occupational exposures to beryllium,
                rather than limiting the requirements to abrasive blasting operations,
                NABTU contended that OSHA's proposal departs from the agency's prior
                conclusions without explaining this supposed departure. According to
                NABTU, OSHA has abandoned its position that the construction standard
                should ``cover all occupational exposures to beryllium'' and instead
                ``decided only to address the `primary' means of exposure'' (Document
                ID 2240, pp. 2-5).
                 In addition to potential exposures from existing operations, USW
                contended that the proposed revisions to the construction and shipyard
                standards fail to account for ``all future operations'' that might use
                beryllium. By tailoring the standards to the specific exposures in
                abrasive blasting and
                [[Page 53928]]
                welding operations, USW contends that OSHA is making a ``dangerous
                assumption'' that it makes ``in no other health standard'' (Document ID
                2212, p. 2). According to USW: ``If a new chemical product is
                synthesized from 1,3-butadiene, the 1,3-butadiene standard will apply
                in its entirety. If arsenic finds a new use in semiconductors, the
                employer will be expected to comply with the entire arsenic standard. .
                . . However, under the OSHA proposal, if metallic beryllium, a
                beryllium alloy, ceramic or other compound is someday used on a
                construction site or in a shipyard, exposed workers will lack important
                protections enjoyed by their counterparts in general industry''
                (Document ID 2212, p. 2). USW echoed NABTU's assertion that OSHA's
                proposal neglects workers beyond abrasive blasters and welders and
                concluded that ``[o]nly by including all the general industry
                protections in the shipyard and construction standards can OSHA fulfill
                [its] mandate'' to protect all workers (Document ID 2212, p. 4).
                 Those commenters who participated in the public hearing also raised
                these concerns in their testimony. Specifically, both NJH and USW again
                identified potential exposures from beryllium-containing non-sparking
                tools (Document ID 2222, Tr. 17-19, 48) and NJH discussed their
                organization's past diagnoses of CBD in contract construction workers
                in the primary beryllium and manufacturing industries (Document ID
                2222, Tr. 48). USW again expressed concern about possible future
                applications of beryllium-containing materials in construction and
                shipyard work (Document ID 2222, Tr. 17-19). NABTU and AFL-CIO both
                reiterated their position that construction workers are exposed through
                activities other than abrasive blasting, particularly demolition,
                renovation, cleanup, and similar work in facilities that make and use
                beryllium-containing alloys (Document ID 2222, Tr. 84, 114-15). NABTU
                concluded that construction workers operating in facilities that use
                beryllium ``are not only potentially exposed to beryllium, but also,
                they will have dermal exposure to dust and debris that can contain
                beryllium at greater than trace amounts'' (Document ID 2222, Tr. 84-
                85).
                 On the whole, these commenters contend that, because there are work
                processes other than abrasive blasting and welding that could expose
                construction and shipyard workers to beryllium, OSHA should not remove
                or modify provisions of the beryllium standards--such as the written
                exposure control plan requirements--to tailor the standards to abrasive
                blasting and welding operations.
                 After reviewing all of these comments and the record as a whole,
                OSHA has determined that the record continues to lack sufficient data
                for the agency to characterize the nature, locations, or extent of
                beryllium exposure in application groups in current-day construction
                and shipyards sectors other than abrasive blasting and certain welding
                operations. Further, although OSHA continues to recognize the
                possibility of exposures beyond abrasive blasting and welding, the
                agency has reason to believe concerns regarding construction workers'
                dermal exposure to more than trace beryllium at general industry sites,
                although potentially justified in the past, likely do not reflect
                current exposures in these contexts.
                 As a result, OSHA finds that it is appropriate to follow through
                with its proposal to tailor certain provisions of the beryllium
                standards for construction and shipyards--including the written
                exposure control plan requirements--to those operations for which the
                agency has data. At the same time, OSHA disagrees with NECA, NDA, and
                CISC that the agency should strictly limit application of the beryllium
                standards to abrasive blasting and welding operations. Accordingly,
                both standards will continue to cover all occupational exposures to
                beryllium in these industries that meet the requirements of paragraph
                (a). OSHA's reasoning and the agency's response to each of the comments
                received on these topics is explained below.
                OSHA's Analysis of the Record With Respect to Beryllium Exposures in
                the Construction and Shipyards Sectors
                 In the 2017 final rule, OSHA based its assessment of applications
                involving beryllium exposure, including its determination that abrasive
                blasting and welding are the only known sources of beryllium exposure
                in construction and shipyards, on the best evidence available in the
                record. This included a comprehensive review of the industrial hygiene
                literature; National Institute for Occupational Safety and Health
                (NIOSH) Health Hazard Evaluations and case studies of beryllium
                exposure; site visits conducted by an OSHA contractor (Eastern Research
                Group (ERG)); inspection data from OSHA's Integrated Management
                Information System (IMIS) and OSHA's Information System (OIS); and
                information submitted to the rulemaking docket in response to the
                notice of proposed rulemaking and informal public hearings, such as a
                comprehensive data set submitted by the Navy of beryllium sampling in a
                wide variety of operations (see 82 FR at 2583; 2017 FEA, Document ID
                2042, pp. IV-17 to IV-22; Document ID 0144, 0145).
                 This review also included comments and testimony on potential
                exposure from sources other than abrasive blasting and welding (82 FR
                2636-40). At the time, several commenters identified many of the same
                jobs and operations as those identified in this rulemaking. NIOSH
                commented that construction workers may be exposed to beryllium when
                demolishing buildings or building equipment, based on a study of
                workers demolishing oil-fired boilers (Document ID 1671, Attachment 1,
                pp. 5, 15; 1671, Attachment 21). At the initial public hearing in 2016,
                NJH testified that numerous studies had documented beryllium exposure,
                sensitization, and CBD in construction workers performing demolition
                and decommissioning and among workers who use non-sparking tools
                (Document ID 1756, Tr. 98). USW also testified that workers in the
                maritime industry use and may sharpen or grind beryllium-containing
                non-sparking tools and that shipyards might use beryllium for other
                tasks in the future. USW further stated that beryllium is a high-tech
                material and that exposure from beryllium containing alloys cannot be
                ruled out in high-tech operations such as aircraft carrier or submarine
                production (Document ID 1756, Tr. 270).
                 After reviewing the record, OSHA determined in the 2017 final rule
                that it did not have sufficient data on beryllium exposures in the
                construction and shipyard industries to characterize exposures in
                application groups other than abrasive blasting with beryllium-
                containing slags and certain welding operations in shipyards, and that
                it could not develop exposure profiles for construction and shipyard
                workers engaged in activities involving non-sparking tools, demolition
                of beryllium-contaminated buildings or equipment, or work with
                beryllium-containing alloys (82 FR at 2639). Even so, OSHA acknowledged
                USW's concerns about future beryllium use and found ``that there is
                potential for exposure to beryllium in construction and shipyards
                operations other than abrasive blasting.'' OSHA concluded that workers
                engaged in any such operations are exposed to the same hazard of
                developing CBD and other beryllium related disease (82 FR at 2639).
                Thus, OSHA chose to cover all occupational exposures to beryllium in
                those industries in order to ensure that the standards are broadly
                effective and address all potentially harmful beryllium exposures (82
                FR at 2639).
                [[Page 53929]]
                 While extending comprehensive beryllium standards to construction
                and shipyards and broadly aligning the ancillary provisions across the
                three sectors, OSHA also identified evidence in the record
                demonstrating meaningful distinctions between the sectors, and
                therefore promulgated different requirements for some ancillary
                provisions. For example, OSHA included requirements pertaining to
                beryllium work areas (BWAs) \13\ in the standard for general industry
                but did not include such requirements in the standards for construction
                and shipyards. OSHA explained that commenters such as Newport News
                Shipbuilding (NNS) (Document ID 1657) and NIOSH (Document ID 1725, p.
                30; 1755, Tr. 21) had brought to its attention difficulties in
                establishing and maintaining BWAs in an operation such as abrasive
                blasting (82 FR at 2660-61). NNS specifically highlighted the
                difficulty of such a requirement where beryllium is encountered in
                trace concentrations (82 FR at 2661; Document ID 1657, pp. 1-2).
                ---------------------------------------------------------------------------
                 \13\ As originally promulgated, the beryllium standard for
                general industry required employers to establish a beryllium work
                area in any area that (1) contains a process or operation that can
                release beryllium, and (2) where employees are, or can reasonably be
                expected to be, exposed to airborne beryllium at any level or where
                there is the potential for dermal contact with beryllium (82 FR at
                2736). BWAs must be demarcated by signs or other methods that
                establish and inform each employee of the boundaries of the area (29
                CFR 1910.1024(e)(2)). Through the May 7, 2018 DFR, OSHA later
                revised the definition of a BWA so that the requirements apply only
                where the process or operation involves material containing at least
                0.1 percent beryllium by weight (83 FR at 19938).
                ---------------------------------------------------------------------------
                 Recognizing that the known exposures in construction and shipyards
                are to trace beryllium, and further recognizing the difficulties
                involved in establishing and maintaining BWA requirements in that
                context, OSHA decided not to require employers in construction and
                shipyards to establish and maintain BWAs (82 FR 2660-61). In this way,
                OSHA differentiated the construction and shipyards standards from the
                general industry standard and tailored portions of the former to the
                particular exposures in abrasive blasting operations. OSHA thereby made
                the standards more workable to implement in those sectors while
                maintaining an overall framework of protections broadly similar to
                those in general industry.
                 After publication of the 2017 final rule, on May 7, 2018, OSHA
                published a direct final rule (DFR) to clarify certain provisions of
                the beryllium standard for general industry as they related to
                materials containing trace amounts of beryllium (84 FR 19936).
                Specifically, the DFR clarified that provisions triggered by dermal
                contact with beryllium or beryllium contamination would apply only for
                dust, fumes, mists, or solutions containing beryllium in concentrations
                greater than or equal to 0.1 percent by weight (83 FR at 19939). OSHA
                made clear that the agency only intended to regulate contact with trace
                beryllium to the extent that it caused airborne exposures of concern
                (83 FR at 19938).
                 In the 2019 NPRM, OSHA sought to more fully tailor the construction
                and shipyards standards to the known exposures in these sectors; that
                is, to abrasive blasting and welding operations. OSHA recognized that,
                in applying some provisions developed for general industry into the
                construction and shipyards standards in the 2017 final rule, the agency
                may have not fully accounted for the trace levels of beryllium in these
                operations. At the same time, the agency remained open to considering
                additional sources of exposure. In the NPRM and multiple times at the
                public hearing, OSHA requested information and data on any additional
                application groups (industries, occupations, processes, etc.) with
                potential exposure to beryllium in the construction and shipyards
                sectors beyond abrasive blasters and welders (84 FR at 53922; Document
                ID 2222, Tr. 33-35; 44-45; 75-76; 95-96; 125-26).
                 Although a number of commenters responded to OSHA's request, as
                outlined above, their comments in many cases relied on anecdotal or
                unverifiable assertions about additional exposure sources. For example,
                NABTU and AFL-CIO listed several jobs that they contend could involve
                exposure to beryllium, but provided nothing documenting current
                exposures in these operations. Likewise, NJH indicated anecdotally that
                they had diagnosed beryllium sensitization and CBD in contractors who
                had performed work at a primary beryllium facility, but due to the
                restrictions under the Health Insurance Portability and Accountability
                Act (HIPAA), they did not disclose any further information about these
                cases (Document ID 2238, p. 1; 2222, Tr. 65). Such information provides
                little on which the agency can rely to evaluate these suggested
                exposure sources.
                 While commenters did provide some evidence in the form of studies,
                OSHA believes the studies referenced have limited value in analyzing
                current exposures to workers in these industries. NABTU (Document ID
                2240), AFL-CIO (Document ID 2239, 2244), and NJH (Document ID 2211,
                2238) cited a number of studies that they contend demonstrate workers
                in the construction trades are at risk of exposure to beryllium in
                greater than trace quantities through work at general industry sites
                that process or previously processed beryllium. Several of these
                studies examined beryllium sensitization and CBD among construction
                trades workers and others who had worked at DOE nuclear weapons
                facilities. Two studies involved exposures at private facilities. Of
                the studies submitted, OSHA had previously reviewed Kreiss et al.
                (1993) and Stange et al. (2001) in the Health Effects section of the
                preamble to the 2017 final rule (82 FR 2506; 2510).
                 Kreiss et al. (1993) conducted a screening of current and former
                workers at a plant that manufactured beryllium ceramics between 1958
                and 1975, and then transitioned to metalizing circuitry onto beryllium
                ceramics produced elsewhere (Kreiss et al. (1993), ``Beryllium Disease
                Screening in the Ceramics Industry'' (Document ID 1478)). Five hundred
                and five of the plant's then-current and retired workers who had not
                previously been diagnosed with CBD or sarcoidosis participated,
                including 377 current and 128 former workers. Workers' airborne
                beryllium exposure was not estimated in this survey, and potential for
                skin contact with beryllium was not explicitly discussed. Surveillance
                for CBD was conducted on this population in 1989-1990 (Document ID
                1478, p. 270).
                 Kreiss et al. (1993) reported nine newly identified cases of CBD
                (Document ID 1478, p. 257). The individuals diagnosed with CBD had
                begun work at the facility between September 1946 and June 1983, with
                most (7 of 9) hired between 1956 and 1973 (Document ID 1478, Table 2,
                p. 270). Two cases (11.1 percent) of newly diagnosed CBD occurred among
                18 workers who performed ventilation maintenance (Document ID 1478,
                Table 7, p. 273).\14\ However, the authors noted that all workers with
                CBD who reported work in ventilation maintenance had also reported work
                in dry pressing and/or process development, job categories which also
                had particularly high prevalence of CBD (15.8 percent and 13.6 percent,
                respectively) (Document ID 1478, p. 272; Table 7, p. 273). Moreover,
                the authors stated that ``persons who had worked at dusty tasks in
                which [beryllium] exposures were harder to control or unlikely to be
                monitored, such as dry pressing and
                [[Page 53930]]
                beryllia process development/engineering, had beryllium disease rates
                between 11 percent and 16 percent,'' rates that ``are higher than those
                described historically in other beryllium industries'' (Document ID
                1478, p. 273). The authors also noted one case of CBD in an employee
                who had begun employment eight years after beryllium production ended
                (a ``dust disturber'' case) who recalled regularly dry-sweeping for a
                period of 6 months in 1983 in an area that was later shown to be
                contaminated by beryllium dust and had no other known source of
                beryllium exposure (Document ID 1478, p. 271). NJH cited Kreiss et al.
                (1993) as evidence that cleanup workers and tool grinders at general
                industry sites can face risk from beryllium exposures (Document ID
                2211, p. 7).
                ---------------------------------------------------------------------------
                 \14\ The authors did not provide detail on this ventilation
                maintenance activity and it is unclear whether such work represents
                a typical construction activity or a routine general industry
                maintenance activity.
                ---------------------------------------------------------------------------
                 Virji et al. (2019) published a study of short-term workers
                employed at a primary beryllium manufacturing facility that processed
                beryllium salts, beryllium metal and alloys, and beryllium oxide (Virji
                et al. (2019), ``Associations of Metrics of Peak Inhalation Exposure
                and Skin Exposure Indices with Beryllium Sensitization at a Beryllium
                Manufacturing Facility'' (Document ID 2239)). This study examined a
                group of 264 short-term workers who were hired after January 1, 1994,
                and who participated in testing for beryllium sensitization in 1999.
                The authors used exposure data such as personal full-shift exposure
                sampling, task and area exposure measurements, and glove measurements
                to create qualitative and quantitative peak inhalation metrics and skin
                exposure indices (Document ID 2239, pp. 858-9). The authors reported
                that their data represent ``historical workplace conditions, before the
                implementation of a redesigned comprehensive prevention program'' which
                included measures to reduce both inhalation and skin exposure through
                improvements in engineering controls and use of personal protective
                equipment and clothing; improved housekeeping; measures to minimize
                migration of beryllium from work areas; and improved health and safety
                and work practice training, beginning in 2000 (Document ID 2239, pp.
                863, 866).
                 Twenty-six of the study participants (9.8 percent) were beryllium-
                sensitized, of whom six were also diagnosed with CBD. The authors noted
                that maintenance work was associated with the highest rate of beryllium
                sensitization (0.154 per person-year of work in the maintenance
                category, which had 52.1 person-years of work in total) (Document ID
                2239, Table 4, p. 865). The authors found that peak inhalation metrics,
                indices, and other evidence of skin exposure, and use of material
                containing beryllium salts were significantly associated with beryllium
                sensitization (Document ID 2239, p. 865). It was not possible to
                distinguish the effects of skin exposure from inhalation exposure
                because these exposures tended to occur together (Document ID 2239, p.
                867). The authors concluded that multiple beryllium exposure pathways
                and types were associated with sensitization and that efforts to
                prevent beryllium sensitization should focus on controlling airborne
                beryllium exposures with particular attention to exposure peaks;
                process characteristics (the likelihood of upset conditions, which can
                lead to high short-term exposures); and minimizing skin exposure to
                beryllium particles, in particular, eliminating skin contact with
                beryllium salts (Document ID 2239, p. 867).
                 NABTU and AFL-CIO referenced Virji et al. (2019) in support of
                their objection to OSHA's proposed removal of dermal protections in the
                construction and shipyard standards (Document ID 2239, p. 2; 2240, pp.
                5-6). NABTU noted that some workers at the beryllium producing facility
                who were not directly involved in beryllium-related operations
                nevertheless became sensitized to beryllium; that maintenance work
                (including shutdown maintenance, as is performed by contract
                construction workers) was associated with the highest rates of
                beryllium sensitization; and that the study authors found a strong
                association between dermal exposure and beryllium sensitization
                (Document ID 2240, pp. 5-6). NABTU concluded that Virji et al.'s study
                ``lends further support to the need to ensure workers handle their
                clothing and other personal protective equipment in ways that minimize
                the potential that either they, their family members or others who may
                handle the PPE are incidentally exposed.'' Furthermore, ``despite the
                importance of the required procedures to restrict access to work areas
                where exposures may exceed the PEL and the presence of a competent
                person--provisions NABTU fully supports--those protections do not
                adequately compensate for the potential that beryllium will migrate
                into other work areas'' (Document ID 2240, pp. 5-6). AFL-CIO also
                commented that Virji et al. showed the importance of controlling skin
                exposure to beryllium in order to prevent beryllium sensitization
                (Document ID 2239, p. 2).
                 Several of the studies cited by NABTU, AFL-CIO, and NJH examined
                beryllium sensitization and CBD among construction trades workers and
                others who had worked at DOE nuclear weapons facilities, including
                Stange et al. (2001), Sackett et al. (2004), Welch et al. (2004), and
                Welch et al. (2013). The commenters cited these studies as evidence
                that construction trades people can be exposed to greater than trace
                amounts of beryllium while conducting cleanup, demolition, and
                deconstruction activities in buildings where beryllium was previously
                released and accumulated in settled dust.
                 Stange et al. (2001) examined the prevalence of beryllium
                sensitization and CBD by job category among 5,713 individuals tested in
                the Rocky Flats Beryllium Health Surveillance Program, which offered
                surveillance for any current or former employee who believed they may
                have been exposed to beryllium at the Rocky Flats Environmental
                Technology Site (Stange, et al. (2001), ``Beryllium sensitization and
                chronic beryllium disease at a former nuclear weapons facility''
                (Document ID 1403)).\15\ Eighty-one cases of CBD and an additional 154
                cases of beryllium sensitization were identified among workers for whom
                job and location (building) histories could be verified (Document ID
                1403, p. 408). The prevalence of beryllium sensitization was found to
                be highest among beryllium machinists (11.4 percent) and health physics
                technicians (11.9 percent) (Document ID 1403, Table III, p. 410). Cases
                were also identified among custodial employees (5.64 percent) and other
                job titles that were thought to have only minimal potential for
                exposure to beryllium (Document ID 1403, pp. 405, 410). AFL-CIO and NJH
                have referenced Stange et al.'s (2001) findings as evidence that
                construction work at beryllium-using facilities can involve risk from
                beryllium exposures (Document ID 2244, p. 3; 0155, p. 3).
                ---------------------------------------------------------------------------
                 \15\ In 1991, the Beryllium Health Surveillance Program (BHSP)
                was established at the Rocky Flats Nuclear Weapons Facility to offer
                BeLPT screening to current and former employees who may have been
                exposed to beryllium (Stange et al. (1996), Document ID 0206).
                ---------------------------------------------------------------------------
                 Sackett et al. (2004) examined BeLPT results and medical
                evaluations of 2,221 workers employed at a nuclear weapons facility
                during decontamination and decommissioning (Sackett et al. (2004),
                ``Beryllium medical surveillance at a former nuclear weapons facility
                during cleanup operations'' (Document ID 1811, Att. 13)). Workers'
                airborne beryllium exposure was not estimated in the study, and
                potential for skin contact with beryllium was not explicitly discussed.
                The authors found
                [[Page 53931]]
                19 cases of beryllium sensitization. Of eight sensitized individuals
                who underwent full clinical evaluation for CBD, two were diagnosed with
                CBD. Seven beryllium-sensitized workers were hired after the start of
                decontamination and decommissioning (Document ID 1811, Att. 13, p.
                953). AFL-CIO, quoting a previously submitted comment from the Colorado
                School of Public Health (Document ID 2136), stated that Sackett et
                al.'s study showed ``that beryllium can cause harm to workers during
                this process [of decontamination and decommissioning], even when
                workers have been provided, certified, and trained in the appropriate
                use of PPE'' (Document ID 2244, p. 9). NJH similarly commented that
                this study demonstrates the potential for exposure during cleanup of
                beryllium-using sites (Document ID 2211, p. 7).
                 Welch et al. (2004) presented BeLPT surveillance results among
                construction trades workers who had formerly been employed at three DOE
                sites where beryllium was present (Hanford Nuclear Reservation in
                Richland, Washington; the Oak Ridge Reservation in Oak Ridge,
                Tennessee; and the Savannah River Site in Aiken, South Carolina) (Welch
                et al. (2004), ``Screening for Beryllium Disease Among Construction
                Trade Workers at Department of Energy Nuclear Sites'' (Document ID
                1815, Attachment 58, p. 207)). Beryllium at these sites had been
                present in fuel fabrication and R&D (Hanford); from nuclear waste
                disposal, an antimony-beryllium source rod reactor failure, copper-
                beryllium tools, chipping of beryllium in glove-box operations, and
                possible beryllium machining (Savannah River Site); and from assembly
                and disassembly of nuclear weapons and machining, grinding, and forming
                of beryllium compounds and alloys (Oak Ridge) (Document ID 1815,
                Attachment 58, p. 208). The authors examined sensitization among 3842
                former workers who completed at least one BeLPT from the screening
                program's beginning (1996) through September 30, 2002 (Document ID
                1815, Attachment 58, pp. 208, 212; Welch et al (2013), Document ID
                2238, Attachment 8, p. 1). Workers' airborne beryllium exposure was not
                estimated in the study, nor were surface concentrations of beryllium
                reported. Welch et al. noted that their study population was ``quite
                different'' from previous studies involving concurrently exposed
                workers in production facilities, ``in that the participants are
                construction workers, and had to have left construction employment at
                the site to be eligible. Many had left employment years before the
                examination took place'' (Document ID 1815, Attachment 58, p. 214).
                Moreover, approximately 70 percent of the study population (2,759/
                3,842) had been hired more than 20 years prior to BeLPT testing
                (Document ID 1815, Attachment 58, Table VI, p. 214), placing the hire
                date for the majority of the study population prior to September 30,
                1982.
                 The authors found 54 cases of beryllium sensitization (defined as
                two abnormal BeLPT results) among the 3,842 tested workers (1.4
                percent), and further reported finding a 2.2 percent prevalence of
                possible sensitization (85 former workers with one or more abnormal
                BeLPT results). Possible cases occurred among machinists (5.6 percent;
                6/107), plumbers/steam fitters (4.1 percent; 5/123), millwrights (3.2
                percent; 7/214), sheetmetal workers (2.5 percent; 5/199), carpenters
                (2.0 percent; 7/250), pipefitters (2.0 percent; 14/690), electricians
                (1.8 percent; 13/707), and laborers (1.2 percent; 7/603) (Document ID
                1815, Attachment 58, Table IV, p. 213). Five workers were diagnosed
                with CBD (Document ID 1815, Attachment 58, p. 215).
                 Welch et al. (2013) published another study of former construction
                trades workers who had worked at DOE sites, using BeLPT results from
                DOE's updated screening program, which had been expanded to 27 sites
                after the publication of Welch et al (2004) (Welch et al. (2013),
                ``Beryllium Disease Among Construction Trade Workers at Department of
                Energy Nuclear Sites'' (Document ID 2238, Attachment 8)). Workers'
                airborne beryllium exposure was not estimated in the study, nor were
                surface concentrations of beryllium reported. Welch et al. (2013) did
                not present information on all study participants' dates of hire or
                employment, but did report that the mean year of first employment at a
                DOE site was 1,973 for workers diagnosed with CBD and 1,976 for
                sensitized workers who were not diagnosed with CBD (Document ID 2238,
                Attachment 8, Table II, p. 7).
                 Among 13,810 former construction workers tested as part of the
                screening program between 1998 and 2010, Welch et al. (2013) identified
                189 cases of beryllium sensitization and reported that 28 (0.2 percent)
                were diagnosed with CBD (of 86 who were medically evaluated) (p. 5).
                They noted that prevalence of sensitization greater than 2 percent
                occurred among sheet metal workers (2.4 percent; 19/786), roofers (2.8
                percent; 3/108) and boilermakers (2.9 percent: 8/274) (Document ID
                2238, Attachment 8, Table IV, p. 8; p. 10).
                 The authors reported that the 2013 results showed patterns similar
                to those of the 2004 study in that both the overall rate of beryllium
                sensitization (1.4 percent) and the prevalence of CBD found among
                beryllium-sensitized workers were ``lower than those reported in a
                number of other populations, such as currently exposed workers in
                production facilities.'' They attributed these findings to the
                participants' indirect exposure to beryllium via skin contact with
                beryllium-contaminated surfaces and with inhalation of re-entrained
                beryllium dust, rather than from working directly with beryllium in
                operations such as machining (Document ID 2238, Attachment 8, p. 6).
                The authors emphasized that their surveillance of construction workers
                had helped DOE personnel to identity and mitigate those exposures which
                still exist at the facility and helped focus attention on the risk for
                beryllium exposure among current demolition workers at these facilities
                (Document ID 2238, Attachment 8, p. 10). NJH and AFL-CIO pointed to the
                Welch et al.'s findings in both the 2004 and 2013 studies as evidence
                that construction trades workers doing contract work in beryllium-using
                industries face a risk from beryllium exposure (Document ID 2211, p. 7;
                2244, p. 9).
                 OSHA has reviewed each of the studies submitted by the commenters.
                Each of the studies support OSHA's determination that beryllium
                exposure presents a serious risk of material health impairment to
                workers. However, OSHA finds that the studies are of limited value in
                determining current exposures faced by those construction and shipyards
                workers covered by the beryllium standards for two reasons. First, as
                acknowledged by NJH (Document ID 2238, p. 1), the studies do not
                contain relevant exposure data. Such data would be needed to
                characterize the airborne and/or dermal exposures of workers in those
                studies, to evaluate with reasonable accuracy the processes and
                operations where significant beryllium exposures may have led to cases
                of beryllium sensitization and CBD, and to determine whether those same
                processes and operations would be likely to contribute to workers' risk
                in current-day facilities. This was the same reason that OSHA
                determined in the 2017 final rule that it could not develop exposure
                profiles for some of these same operations (see 82 FR at 2639).
                 Perhaps more importantly, OSHA doubts that these studies reflect
                current conditions in general industry facilities. The studies appear
                to primarily involve
                [[Page 53932]]
                populations with many members exposed before the 1990s, when the use of
                the BeLPT in screening for CBD led both DOE and some private firms to
                adopt and increasingly strengthen beryllium exposure control
                strategies.\16\ The studies evaluating former construction trades
                workers largely involve populations who were first exposed before DOE
                and private industry sites--such as those studied by Kreiss et al
                (1993) and Virji et al. (2019)--began to strengthen exposure controls
                in the mid-1990s, and long before OSHA issued comprehensive beryllium
                standards in 2017. As noted above, approximately 70 percent of the
                study population (2,759/3,842) had been hired more than 20 years prior
                to BeLPT testing (Document ID 2238, Attachment 8, Table VI, p. 214),
                placing the hire date for the majority of the study population prior to
                September 30, 1982.
                ---------------------------------------------------------------------------
                 \16\ In DOE and in private industry, general awareness of
                beryllium-related risks at airborne levels lower than the previous
                OSHA PEL of 2 ug/m\3\ was low until the early 1990s, when use of the
                BeLPT by researchers such as Kreiss et al. brought greater
                understanding of the need to better control beryllium exposures. By
                1993, beryllium had been identified as a significant source of
                occupational disease risk within the DOE complex, and by 1996, DOE
                had established an interim Chronic Beryllium Disease Prevention
                Program rule, which was finalized in 1999 (Document ID 2238,
                Attachment 8, pp. 1-2).
                ---------------------------------------------------------------------------
                 Importantly, these studies do not account for the effect of OSHA's
                beryllium standard for general industry (29 CFR 1910.1024), which
                addresses the primary sources of exposure in these studies--
                insufficiently controlled beryllium-releasing processes and settled or
                re-entrained dust containing beryllium--and is designed to drastically
                reduce beryllium exposures in general industry facilities. To comply
                with its obligations under the general industry standard, the host
                employer at a general industry site today will have implemented
                beryllium work areas or regulated areas around processes that create
                beryllium exposures of concern (29 CFR 1910.1024(e)), will have
                instituted engineering controls and work practices to control exposures
                (29 CFR 1910.1024(f)), and will have implemented housekeeping measures
                that will prevent the accumulation or re-entrainment of settled dust
                containing beryllium (29 CFR 1910.1024(j)). These measures, combined
                with the general industry employer's duty under the hazard
                communication standard to inform any construction employer entering the
                area of the potential for hazardous beryllium exposure and the
                precautionary measures needed to protect employees (29 CFR
                1910.1024(m); 29 CFR 1910.1200(e)(2)), are designed to ensure that
                construction employees entering the general industry site are not
                exposed to active beryllium-releasing processes or accumulated
                beryllium in the work area and are able to avoid any remaining risk of
                beryllium exposure.
                 In sum, the most that these studies can tell us is that in the
                past, construction employees at general industry sites with beryllium
                exposure from poorly controlled processes became sensitized to
                beryllium and, in some cases, developed CBD. This information supports
                OSHA's determination that beryllium exposure presents a serious health
                risk. It does not, however, demonstrate that construction employees who
                enter a general industry site today--with the engineering and work
                practice controls, housekeeping, and other requirements of the
                beryllium general industry standard--will be exposed to and require
                protection from dermal contact with beryllium in more than trace
                amounts.
                 With respect to potential exposure from the dressing or sharpening
                of beryllium-containing non-sparking tools, NJH (Document ID 2211, p.
                7; 2238, p. 2) referred OSHA to two studies by Mikulski et al. that
                found exposure to beryllium through machining and grinding of copper-
                beryllium (Cu-Be) 2 percent alloy tools, even when done only
                occasionally, was associated with increased risks of beryllium
                sensitization (``Risk of Beryllium Sensitization in a Low-Exposed
                Former Nuclear Weapons Cohort from the Cold War Era'' (2011a) (Document
                ID 2238, Attachment 4); ``Prevalence of Beryllium Sensitization Among
                Department of Defense Conventional Munitions Workers at Low Risk for
                Exposure. Journal of Occupational and Environmental Medicine'' (2011b)
                (Document ID 2238, Attachment 5)). These studies reported the results
                of a DOE program that screened former workers at a nuclear weapons
                assembly site for beryllium sensitization as part of that agency's
                Former Worker Program established in 1996. The site in question
                operated beginning in 1941 as a Load, Assembly and Pack (LAP) facility
                for the Department of Defense (DOD) conventional munitions operations;
                from 1949 to mid-1975 it was shared with DOE for production of nuclear
                weapons; and in 1975 DOE activities ceased at this site (Document ID
                2238, Attachment 4, p. 195).
                 Although OSHA acknowledges the findings of the Mikulski studies,
                which involved exposures at a DOD facility prior to 1975, comments and
                hearing testimony received in response to the NPRM suggest that the
                dressing or sharpening of non-sparking tools is not an exposure source
                of concern for workers in the construction and shipyards sectors
                covered by the beryllium standards. At the public hearing, NABTU--which
                had earlier in the rulemaking process raised concerns about exposure
                from such tools (Document ID 2202, p. 19)--indicated that they had
                attempted but were not able to find specific examples of construction
                trades workers dressing or sharpening non-sparking tools (Document ID
                2222, Tr. 88). Likewise, when asked about the prevalence of these tools
                in construction, the representative from USW stated that he had
                personally used beryllium-containing non-sparking tools on a few
                occasions many years ago, but that he could only speculate as to how
                often they are used today. He further testified that he did not know
                why one would use these tools over other non-sparking tools that do not
                contain beryllium (Document ID 2222, Tr. 32-34).
                 Other commenters raised doubts about the extent of exposure from
                non-sparking tools. The SCA identified the use of non-sparking tools in
                shipyards, but noted that these are ``infrequently used, and
                intermittent'' (Document ID 2204, p. 2). SCA did not identify how often
                or by whom these tools are dressed or sharpened, which, as the
                representative from USW recognized (Document ID 2222, Tr. 32), is the
                process during which beryllium exposure might occur. Materion, while
                noting that they do not serve the non-sparking tool market, stated that
                the dressing of non-sparking tools could result in exposure to
                beryllium above the action level but also noted that the other primary
                producer of copper beryllium--which does serve that market--has a
                program through which its customers can return their non-sparking tools
                for sharpening at no cost (Document ID 2237, p. 3). That exposure from
                this source is unlikely is supported by exposure data in the record,
                submitted by the Navy and private shipbuilding establishments, showing
                that the primary exposure source in shipyards is abrasive blasting with
                some additional exposures during welding operations (Document ID 0144,
                p. 3-4; 0145; 1166).\17\
                ---------------------------------------------------------------------------
                 \17\ Some commenters also stated that potential sources of
                beryllium exposure in these sectors include work at landfills that
                receive beryllium-containing materials (Document ID 2202, Attachment
                1, p. 2); work on high-tech aircraft and submarines (Document ID
                2208, p. 6); and work as machinists and surveyors (Document ID 2210,
                p. 4). OSHA notes that many of these categories would appear to be
                jobs that are not covered by the construction or shipyards
                standards, either because they are likely covered by the general
                industry standard or because they relate to ``uniquely military
                equipment, systems, and operations'' (see Executive Order 12196; 29
                CFR 1960.2(i)). Regardless, as with the other operations identified,
                the record lacks data from which OSHA could evaluate exposures in
                these operations.
                ---------------------------------------------------------------------------
                [[Page 53933]]
                 OSHA continues to recognize the possibility that some construction
                and shipyard workers could be exposed to beryllium through activities
                other than abrasive blasting and welding. However, the record continues
                to lack key data about these potential exposures, including how often
                the exposures occur, who is exposed, the duration of the exposures, the
                type and extent of exposure, or any controls that may be in place to
                address them. Without this data, OSHA lacks sufficient information to
                characterize the nature, locations, or extent of beryllium exposure in
                application groups other than abrasive blasting with beryllium-
                containing slags and certain welding operations. Importantly, with
                respect to commenters' assertion that these additional exposures
                include a risk solely from dermal contact with more than trace
                beryllium, either from construction work at general industry sites that
                handle beryllium or through the use of non-sparking tools, OSHA finds
                that the record does not demonstrate that this continues to be a
                concern, for the reasons already discussed.
                 Therefore, the agency finds that it is appropriate at this time to
                tailor certain aspects of the final standards--such as the written
                exposure control plan requirements--to those operations for which the
                agency has sufficient data to demonstrate worker exposure to beryllium
                at levels of concern, to properly characterize and evaluate the
                exposures, and to develop appropriate measures to address them. By
                ensuring that these provisions of the beryllium standards for
                construction and shipyards are no more complex or onerous than is
                needed to protect workers, OSHA believes the final standards will
                improve compliance and thereby more effectively protect these workers.
                 At the same time, OSHA disagrees with industry commenters who
                contend that the protections of the beryllium standards for
                construction and shipyards should only apply to abrasive blasters and
                welders. OSHA maintains that all beryllium-exposed workers in
                construction and shipyards should be afforded protections from
                beryllium exposure (see 84 FR at 51377) and, to the extent that
                exposures from sources other than abrasive blasting and welding do
                occur, the beryllium standards for construction and shipyards continue
                to provide these protections. Both standards continue to apply to all
                occupational exposure to beryllium that meets the requirements of
                paragraph (a). OSHA declines to adopt CISC's suggestion that the agency
                simply incorporate new requirements into paragraph (f) of the
                ventilation standard for construction (29 CFR 1926.57), so as to apply
                them only to abrasive blasters, as this would leave unprotected
                employees who might be exposed in operations OSHA has not identified or
                in the future. This is consistent with OSHA's typical approach to
                substance-specific standards, which generally apply broadly to all
                occupational exposure to a substance, rather than to particular
                operations (see, e.g., 29 CFR 1926.1126(a)(1) (Chromium (IV)); 29 CFR
                1926.1127(a) (Cadmium); 29 CFR 1910.1028(a)(1) (Benzene); 29 CFR
                1910.1053(a) (Respirable Crystalline Silica)). With respect to CISC's
                assertion that construction employers will have to evaluate every task
                and material on their worksite to determine whether beryllium is
                present in trace amounts (Document ID 2203, p. 16), the agency
                emphasizes that this is not the case. Although the beryllium standard
                applies to occupational exposure to beryllium in all forms, compounds,
                and mixtures in the construction industry, paragraph (a)(3) exempts
                from coverage materials containing less than 0.1 percent beryllium by
                weight where the employer has objective data demonstrating that
                employee exposure to beryllium will remain below the action level of
                0.1 [micro]g/m\3\, as an 8-hour time weighted average, under any
                foreseeable conditions. As explained below, apart from certain abrasive
                blasting media, those materials at the typical construction site that
                the agency has identified as containing beryllium in trace amounts
                (i.e. rock, soil, concrete, and brick) are not likely to release
                airborne beryllium above the action level under foreseeable conditions
                and therefore do not typically trigger the requirements of the
                standard. Further, for any additional materials containing comparably
                low levels of beryllium, an employer may rely on objective data that
                employees will not be exposed above the PEL for total airborne dust to
                qualify for the exemption under paragraph (a)(3).
                 OSHA's analysis of its own sampling data demonstrates that
                exposures from rock, soil, and concrete are highly unlikely to exceed
                the action level in typical circumstances (see Beryllium Air Samples at
                Construction Sites: An Analysis of OSHA OIS Sample Results 2012-2018,
                Document ID 2235). This data shows that, given the low levels of
                beryllium in rock, soil, and concrete, airborne dust concentrations
                would have to be extremely high for exposures to even approach the
                beryllium action level. The same is true for brick, which may contain
                beryllium in trace amounts comparable to these materials.\18\ These
                dust concentrations would typically exceed the PEL for total airborne
                dust, or particulates not otherwise classified (PNOC), long before the
                beryllium action level is reached. In the case of concrete, the level
                of airborne dust required to reach the beryllium action level would
                also surpass the PEL for crystalline silica many times over. Thus, the
                action level would only be reached under extremely dusty conditions--
                such as those produced during abrasive blasting operations--that would
                also exceed the PELs for PNOC and crystalline silica.
                ---------------------------------------------------------------------------
                 \18\ The beryllium content of soil and rock averages less than 2
                ppm while the beryllium content of concrete is typically less than 1
                ppm (Document ID 2235, pp. 2, 6). Some bricks may contain up to 50
                percent fly ash, which in turn may contain beryllium in trace
                amounts (see 2017 FEA, Document ID 2014, pp. IV-651 to IV-652).
                ---------------------------------------------------------------------------
                 OSHA considers this data sufficient to demonstrate that exposure to
                rock, soil, concrete, and brick at the typical construction site will
                not result in beryllium exposure above the action level under
                foreseeable conditions. As such, when performing tasks at the typical
                construction site, exposure to these materials will not trigger the
                requirements of the beryllium standard. Outside of these materials and
                certain abrasive blasting media, OSHA is not aware of any other
                building materials at the typical construction site that contain
                beryllium. However, for any material containing comparable levels of
                beryllium, an employer may rely on objective data that exposures in its
                operations are consistently below the PEL for PNOC to demonstrate that
                exposure from these materials would not exceed the beryllium action
                level under foreseeable conditions.
                 The agency notes that if a construction employer has reason to
                believe that the materials at its particular worksite contain beryllium
                at levels significantly above average or that a particular process
                produces abnormally high levels of dust such that beryllium exposure
                might foreseeably reach the action level (e.g., where total dust is
                likely to exceed the PEL for PNOC), that employer would be required to
                comply with the applicable provisions of the beryllium standard. These
                circumstances, however, will not
                [[Page 53934]]
                be typical of the average construction site.
                 OSHA also disagrees with commenters such as NABTU (Document ID
                2240, p. 2) who suggest that the agency has abandoned its prior
                position regarding the coverage of the construction and shipyards
                standards. While OSHA acknowledged in the 2017 final rule the
                ``potential for exposure'' outside of abrasive blasting and welding and
                determined that any such exposure should be covered by the beryllium
                standards for construction and shipyards (a position the agency
                maintains), OSHA made no finding in the 2017 final rule that workers in
                the construction industry are currently at risk from dermal contact at
                general industry sites or from the dressing or sharpening of non-
                sparking tools. On the contrary, the agency was clear that it lacked
                data to characterize or quantify exposures from additional sources (82
                FR at 2639). The agency's finding in this rulemaking that these
                particular sources of exposure are likely not a concern in the
                construction and shipyards sector is not a change from its previous
                position, as the agency took no position on the issue in the 2017 final
                rule. Where OSHA did originally include provisions aimed solely at
                dermal contact in the construction and shipyards standards that it now
                intends to remove, this was due to the agency borrowing provisions from
                the general industry standard without appropriately accounting for the
                trace exposures in abrasive blasting and welding as they pertain to
                dermal contact.\19\ Inclusion of these provisions was not based on a
                finding by OSHA that the provisions were necessary to address exposures
                beyond abrasive blasting and welding.
                ---------------------------------------------------------------------------
                 \19\ As has been noted, the agency did specifically tailor some
                provisions to abrasive blasting; for example, deciding not to extend
                the beryllium work area requirements of the general industry
                standard to construction and shipyards. In that case, commenters
                specifically identified the requirement as unworkable when dealing
                with materials containing beryllium in trace amounts (see 82 FR at
                2661).
                ---------------------------------------------------------------------------
                 At the same time, some commenters misconstrue the agency's focus on
                the ``primary'' sources of exposure as the agency ignoring the
                possibility of different exposures. This is not the case. Rather, OSHA
                finds that the standards as revised will maintain protections in all
                likely exposure scenarios while more appropriately addressing the
                operations from which exposures regularly occur. This approach is
                consistent with the agency's position in the 2017 final rule, as
                evidenced by the agency's decision at that time to tailor several
                provisions of the standards to abrasive blasting operations, as
                discussed above.
                 With respect to the USW's assertion that OSHA must consider
                potential future uses of beryllium that do not currently exist
                (Document ID 2222, Tr. 18-19), the agency agrees and again emphasizes
                that the beryllium standards for both construction and shipyards
                continue to apply to all beryllium exposures, present or future, that
                meet the requirements of paragraph (a). At the same time, OSHA declines
                to fashion the standards around hypothetical exposures which the agency
                cannot quantify or evaluate, rather than around those operations for
                which it has data. The agency remains free to further revise the
                standard in the future if new processes or uses of beryllium warrant
                such a change.
                 The agency also notes that the inability of stakeholders to provide
                relevant data on exposures outside of abrasive blasting and welding,
                suggests that such exposures, if they occur, are rare. As such,
                acknowledging the possibility of these exposures does not alter OSHA's
                previous analysis with respect to the economic and technological
                feasibility of the beryllium standards for construction and shipyards.
                OSHA has no reason to believe that these rare exposures, if they occur,
                would mean that compliance with the PEL can no longer be met in most
                operations most of the time or that the beryllium standards will now
                imperil the existence of the construction and shipyards industries (see
                82 FR at 2583).
                 In summary, after considering the comments received and the record
                as a whole, the agency has determined that it is appropriate to tailor
                certain ancillary provisions of the beryllium standards for
                construction and shipyards to abrasive blasting and welding operations,
                the two operations for which it has relevant data. At the same time,
                the agency maintains its position that the construction and shipyards
                standards should continue to apply to all occupational exposure to
                beryllium in these sectors. Based on the record, OSHA has determined
                that the standards, as revised, continue to address the known exposures
                of concern in the construction and shipyards sectors, as well as
                potential exposures outside of abrasive blasting and welding
                operations, and will not result in reduced protections for workers in
                these industries. This is true with respect to the proposed revisions
                to paragraph (f)(1), as well as to other revisions proposed on the
                basis that the primary beryllium exposures in construction and
                shipyards take place during abrasive blasting and welding operations.
                OSHA remains open to revisiting these issues in the future and
                continues to welcome data and information on additional operations with
                potential exposure to beryllium in the construction and shipyards
                sectors.
                 In addition to the comments regarding exposure to beryllium in
                contexts other than abrasive blasting and welding, one commenter
                further challenged the agency's preliminary determination that welding
                in shipyards is not likely to produce skin exposures of concern.
                Specifically, USW stated, ``OSHA acknowledges that welding with
                beryllium-copper rods and wire can expose workers to beryllium, but
                dismisses the hazards of dermal contact on the grounds that such
                contact with materials exceeding 0.1 percent is unlikely. However
                beryllium-copper rods typically contain 2 percent beryllium'' (Document
                ID 2212, p. 3).
                 With respect to the limited welding operations in shipyards, OSHA
                explained in the NPRM that, although these operations may involve base
                materials or fume containing more than 0.1 percent beryllium by weight,
                OSHA has reason to believe that skin or surface contamination is not an
                exposure source of concern. Specifically, a 2007 study by Cole
                indicated that the beryllium content of beryllium aluminum alloy
                welding fume samples was lower than expected given the beryllium
                content of the base metal (84 FR at 53906). One commenter, USW
                (Document ID 2212), took issue with OSHA's preliminary determination
                with respect to welding. However, they did not discuss the Cole study,
                nor provide additional evidence to contradict OSHA's position with
                respect to skin and surface contamination in this operation.
                 USW pointed to an information sheet on beryllium copper welding
                wire and rods published by U.S. Alloy Company that, it claimed, ``warns
                users against grinding, cutting, or polishing [a] weld without proper
                protection'' (Document ID 2212, p. 3; Attachment A). According to USW,
                ``welds are often subjected to the operations the manufacturer warned
                against, sometimes by workers other than welders, and there is no
                indication that OSHA considered them'' (Document ID 2212, p. 3).
                However, the information sheet USW provided nowhere mentions a dermal
                contact risk from these welding rods. Rather, it states that ``care
                should be taken to avoid inhaling the welding fumes,'' including
                ``purging the area by drawing off any of the fumes with smoke eaters
                and having the operators wear a mask'' (Document 2212, Attachment A).
                Importantly, the portion to which USW
                [[Page 53935]]
                refers reads ``[d]ust or fumes generated by machining, grinding,
                sawing, blasting, polishing, buffing, brazing, soldering, welding or
                thermal cutting of the casting can produce airborne contaminants that
                are hazardous'' (Document 2212, Attachment A) (emphasis in the
                original). Rather than demonstrating a dermal contact risk from
                beryllium copper welding wire and rod, OSHA finds that the lack of any
                mention of such a risk in the manufacturer's information sheet supports
                OSHA's finding that such exposures are not a concern in this
                context.\20\
                ---------------------------------------------------------------------------
                 \20\ NJH also commented that coal slag may contain more than
                trace amounts, citing a study by the Center to Protect Workers'
                Rights (CPWR) that ``found that beryllium was present at a
                concentration of 4 parts per million (ppm) in coal slag samples
                analyzed prior to blasting, and measured airborne beryllium
                concentrations of up to 9.5 [mu]g/m\3\ during abrasive blasting
                tasks, far above trace amounts'' (Document ID 2211, p. 7). OSHA
                notes that 4 ppm, or 0.0004 percent by weight, is well under the 0.1
                percent beryllium by weight that OSHA treats as ``trace'' for the
                purposes of these standards (82 FR at 2610).
                ---------------------------------------------------------------------------
                Comments Specific to Paragraph (f)(1)
                 In addition to these broader comments about the appropriate
                application group in the construction and shipyards sectors, OSHA
                received a number of additional comments specifically addressing the
                written exposure control plan requirements of paragraph (f)(1). Two
                stakeholders commented broadly on the importance of written exposure
                control plans. The AFL-CIO and NABTU stated that written exposure
                control plans are essential to providing employers with a clear plan
                for exposure identification and control (Document ID 2210, p. 6;
                Document ID 2202, p. 5). NABTU emphasized the importance of the written
                plan's description of engineering controls, work practices, and
                substitute materials for each task and a description of how employers
                will protect workers not engaged directly in beryllium-exposed tasks,
                by limiting access to work areas where beryllium-exposed tasks such as
                abrasive blasting occur (Document ID 2202, p. 6). Without a written
                plan, both groups asserted, employers are unlikely to adequately
                control beryllium exposure (Document ID 2210, p. 6; Document ID 2202,
                p. 6). NABTU further emphasized that when planning for worker
                protection during tasks involving beryllium, employers must account for
                the unique toxicity of beryllium by creating a written exposure control
                plan specifically addressing beryllium exposures (Document ID 2202, p.
                5).
                 The remainder of this section details the comments received with
                respect to each proposed revision in paragraph (f)(1) and provides
                OSHA's final determination.
                 OSHA's proposed revisions to paragraph (f)(1)(i)(A) received no
                comment apart from the general concerns discussed above regarding
                OSHA's assessment of beryllium exposures outside of abrasive blasting
                and welding. Therefore, OSHA is finalizing its proposal to modify
                paragraph (f)(1)(i)(A) to refer simply to ``exposure'' rather than
                ``airborne exposure to or dermal contact with'' by removing the words
                ``airborne'' and ``or dermal contact with'' as qualifiers for exposure
                to beryllium. OSHA notes that these changes are consistent with other
                paragraphs where the agency is simplifying the language in a similar
                manner (e.g., paragraphs (k)(3)(ii)(A) and (k)(4)(i), Medical
                surveillance), and is not intended to alter the meaning of the
                provision.
                 OSHA is also finalizing its proposal to revoke paragraphs
                (f)(1)(i)(B) and (C) of both the construction and shipyards standards,
                which previously required lists of operations and job titles involving
                exposure above the action level and above the TWA PEL or STEL,
                respectively. OSHA's proposals to revoke these paragraphs received
                little comment apart from the general concerns discussed above
                regarding the potential for exposures in contexts other than abrasive
                blasting and welding. As discussed there, OSHA has concluded that it is
                appropriate to tailor certain aspects of the beryllium standards for
                construction and shipyards to the limited number of operations known to
                involve beryllium exposure in construction and shipyards. Given the
                small number of operations with known beryllium exposure in these
                industries, OSHA maintains that the operations and job titles in these
                categories would be largely the same as those for which exposure to
                beryllium is reasonably expected. OSHA therefore believes it sufficient
                to require that an employer identify those operations and job titles
                that result in exposure to beryllium in any form and that fall within
                the scope of the standards, and that any additional lists would be
                unnecessary and redundant.
                 With respect to OSHA's proposal to add a new paragraph in both the
                construction ((f)(1)(i)(E)) and shipyards ((f)(1)(i)(D)) standards to
                require that the written exposure control plan include procedures used
                to ensure the integrity of each containment used to minimize exposures
                to employees outside the containment, no commenter objected to the
                addition of this requirement, while NJH supported it (Document ID 2211,
                p. 8). As OSHA explained in the NPRM, this requirement will ensure that
                any containment used is not compromised such that employees outside of
                the containment are potentially exposed to beryllium at levels above
                the TWA PEL or STEL. The need for this requirement is reinforced by
                comments from USW identifying issues with gaps and leaks from ``make
                shift containment'' (Document ID 2124, page 10) and noting that
                beryllium can escape from abrasive blasting containments (Document ID
                2222, Tr. 27-28). After considering the comments and the record as a
                whole, OSHA is finalizing this provision as proposed.
                 AFL-CIO disagreed with OSHA's proposal to remove paragraphs
                (f)(1)(i)(D) and (E) of the standards, which required the employer to
                include in the written exposure control plan procedures for minimizing
                cross-contamination and migration of beryllium within or to locations
                outside the workplace. AFL-CIO characterized these provisions as
                ``essential to reduce cumulative exposure to beryllium for workers in
                high exposure operations and to protect other workers who do not
                perform beryllium tasks but would be exposed to beryllium due to the
                lack of cross contamination and migration minimization procedures''
                (Document ID 2210, p. 6).
                 AFL-CIO also argued that OSHA's proposed requirement for written
                exposure control plans to include procedures used to ensure the
                integrity of each containment used to minimize exposures to employees
                outside of containments would be insufficient to control the migration
                of beryllium (Document ID 2210, p. 6). AFL-CIO stated that ``OSHA is
                requiring containments that would create a higher concentration of
                beryllium dust inside the enclosure [and] relying on the protection of
                PPE,'' while revising paragraph (f) and paragraphs (h)(2) and (3) to no
                longer require employers to use specific procedures to ensure that PPE
                is safely doffed. According to AFL-CIO, this will increase the
                cumulative exposure risk for abrasive blasters and increase the risk of
                cross-contamination and migration of beryllium, thereby exposing
                workers with no respiratory or dermal protection (Document ID 2210, p.
                7).
                 OSHA disagrees, firstly, with AFL-CIO's contention that the
                proposed requirement for written exposure control plans to include
                procedures used to ensure the integrity of each containment would lead
                to increased beryllium exposures to workers inside
                [[Page 53936]]
                the enclosure. This final rule does not require the use of
                containments, but rather requires that when an employer chooses to use
                a containment, it is used in such a way that employees outside of the
                containment are not exposed to beryllium at levels above the TWA PEL or
                STEL. In other words, this requirement merely ensures that
                containments, when used, accomplish their intended function. Workers
                inside the containment continue to receive the protections of the
                requirements for use of PPE (paragraph (h)(1)) and respiratory
                protection (paragraph (g)(1)(ii)-(iii)), as well as the requirements
                that PPE not be removed or cleaned in a manner that releases beryllium
                into the air (paragraph (h)(2)(ii), (h)(3)(ii)). For this reason, OSHA
                finds that adding a requirement that the written control plan include
                such procedures will not lead to increased beryllium exposures to
                workers inside such containments.
                 Furthermore, OSHA disagrees with AFL-CIO's position that the
                previous requirements to document procedures for minimizing cross-
                contamination and migration in the written exposure control plan are
                necessary to protect workers in the context of the specific exposures
                in construction and shipyards sectors. In the general industry context,
                requirements relating to cross-contamination and migration serve to
                address concerns about both airborne and dermal exposures (see 82 FR at
                2668-69). At the same time, OSHA has explained that it does not intend
                provisions aimed at protecting workers from the effects of dermal
                contact to apply in the case of materials containing only trace amounts
                of beryllium absent significant airborne exposures (84 FR at 53906).
                OSHA maintains that the primary exposures in construction and shipyards
                are from abrasive blasting with material containing trace amounts of
                beryllium and limited welding operations. Moreover, as explained above,
                while the agency recognizes the potential for other exposure sources in
                these sectors, the record does not demonstrate that potential exposures
                involve a risk of dermal contact to beryllium in more than trace
                amounts.
                 In the 2017 final rule, OSHA tailored portions of the written
                exposure control plan requirements in construction and shipyards to the
                particular exposures in abrasive blasting operations. Specifically, the
                agency chose not to include in the construction and shipyards standards
                a requirement that employers keep surfaces as free as practicable of
                beryllium, as it had done in the general industry standard, finding
                that such a requirement would be impracticable in abrasive blasting
                operations (82 FR at 2669). At the same time, the agency applied other
                provisions, developed for the general industry context, without
                appropriately accounting for the trace amounts of beryllium in the
                construction and shipyards sectors. In these sectors, where the record
                evidence on dermal exposure in modern-day worksites is limited to trace
                amounts of beryllium and where the agency otherwise has reason to
                believe dermal contact is not an exposure source of concern, OSHA now
                finds that it is appropriate to further tailor these provisions to
                focus on ensuring that workers not involved in beryllium-related
                operations are not exposed to airborne beryllium in excess of the PELs.
                 Several provisions of both standards work together to protect
                workers near abrasive blasting and welding operations from exposures
                above the PELs. In the construction standard, the written exposure
                control plan must include procedures to restrict access to work areas
                where exposures to beryllium could reasonably be expected to exceed the
                TWA PEL or STEL (renumbered in this final rule as paragraph
                (f)(1)(i)(D)), and the requirement that these procedures are to be
                implemented by a competent person (paragraph (e)(2)). In the shipyard
                standard, requirements for regulated areas (paragraph (e)) require that
                employers designate areas where exposures to beryllium could exceed the
                PELs and limit access to authorized employees. OSHA has retained these
                requirements in this final rule. Further, the housekeeping requirements
                of both standards (paragraph (j)) require cleaning methods that
                minimize the likelihood of re-entrainment of beryllium-containing dust
                when cleaning up dust produced by abrasive blasting operations.
                 In addition, as discussed above, OSHA is finalizing its proposal to
                add a new paragraph in both the construction ((f)(1)(i)(E)) and
                shipyards ((f)(1)(i)(D)) standards to require that the written exposure
                control plan include procedures used to ensure the integrity of each
                containment (such as tarps or structures used to keep sandblasting
                debris within an enclosed area) used to minimize exposures to employees
                outside the containment. This requirement will further limit airborne
                exposures for employees outside of the containment where an employer
                uses a containment. Finally, both standards require the employer to
                ensure that personal protective clothing and equipment required by the
                standard is not removed in a manner that disperses beryllium into the
                air (paragraph (h)(2)(ii)), which will serve to limit migration of
                beryllium and reduce airborne exposure from re-entrainment.
                 With respect to the AFL-CIO's assertion that procedures regarding
                the integrity of containments are insufficient to protect workers, OSHA
                makes two points. First, comments in the record indicate that
                containments can be effective in containing dust during abrasive
                blasting, if appropriate procedures are used to ensure their integrity.
                As noted by the USW and AFL-CIO, there are times that the abrasive
                blasting media can compromise the integrity of the containment
                (Document ID 2124, pp. 10-11, 13; 1756, Tr. 246-49; 2210, p. 6).
                However, under these circumstances OSHA expects that operations would
                be suspended to repair the containment. According to the testimony from
                USW during the public hearing for the 2017 final rule, this practice
                already takes place in some shipyard operations (Document ID 1756, Tr.
                262-63). USW further identified the use of negative pressure with
                containments as a feasible and effective way to ensure their integrity;
                a method that is already used in the context of bridge repair (Document
                ID 1756, Tr. 264).
                 Second, OSHA reiterates that it does not intend for the added
                provision on containments alone to protect workers from exposures
                exceeding the PEL. Rather, the agency intends this added provision to
                complement the written plan's procedures to restrict access to work
                areas where exposures to beryllium could reasonably be expected to
                exceed the TWA PEL or STEL (renumbered as paragraph (f)(1)(i)(D) of the
                construction standard), the requirement that these procedures are to be
                implemented by a competent person (paragraph (e)(2) of the construction
                standard) and requirements for regulated areas (paragraph (e) of the
                shipyard standard), to ensure that workers not directly involved in
                beryllium-related operations would not be exposed to beryllium above
                the PELs.
                 OSHA has determined that these requirements will adequately ensure
                that workers in shipyards and construction not directly involved in
                beryllium-related work will not be exposed to beryllium in excess of
                the TWA PEL or STEL, and is therefore finalizing its proposal to revoke
                the requirements that the employer include in the written exposure
                control plan procedures for minimizing cross-contamination (former
                paragraph (f)(1)(i)(D)) and procedures for minimizing the migration of
                beryllium within or to locations outside the
                [[Page 53937]]
                workplace (former paragraph (f)(1)(i)(E)).
                 The AFL-CIO also disagreed with OSHA's proposal to remove paragraph
                (f)(1)(i)(H), which in the 2017 rule required employers to document
                procedures for removing, laundering, storing, cleaning, repairing, and
                disposing of beryllium-contaminated PPE, from the written exposure
                control plan. The AFL-CIO argued that these procedures protect workers
                from further exposing themselves to beryllium when putting on and
                removing PPE and prevent cross-contamination and migration of beryllium
                to other areas of the worksite (Document ID 2210, p. 6). NJH similarly
                argued that procedures should be in the written exposure control plan
                to identify and minimize beryllium exposures to workers involved in
                cleaning and maintaining PPE, as well as containments. If exposures are
                generated in a process, they stated, then PPE to protect the worker is
                contaminated and should be handled as required in the 2017 final rule
                (Document ID 2211, p. 9).
                 OSHA disagrees with the AFL-CIO and NJH that all of the 2017 final
                rule's requirements for removing, laundering, storing, cleaning,
                repairing, and disposing of beryllium-contaminated PPE are necessary in
                the construction and shipyards context. As OSHA explains in the summary
                and explanation for paragraph (h), Personal Protective Clothing and
                Equipment, OSHA has determined that it is appropriate to remove certain
                requirements pertaining to laundering, storing, and disposal of PPE
                from the construction and shipyard standards. Specifically, OSHA is
                removing three provisions from paragraphs (h)(2) and (3): The
                requirement to ensure that each employee stores and keeps beryllium-
                contaminated PPE separate from street clothing and that storage
                facilities prevent cross-contamination as specified in the written
                exposure control plan (paragraph (h)(2)(iii)); to ensure that PPE
                removed from the workplace for laundering, cleaning, maintenance, or
                disposal be placed in closed, impermeable bags or containers labeled in
                accordance with the standards' employee information and training
                requirements and the Hazard Communication standard (paragraph
                (h)(2)(v)); and to inform, in writing, any person or business entity
                who launders, cleans, or repairs PPE required by the standards of the
                potentially harmful effects of exposure to airborne beryllium and
                dermal contact with beryllium, and of the need to handle the PPE in
                accordance with the standards (paragraph (h)(3)(iii)). OSHA is removing
                paragraph (h)(2)(iii) because it applies only to ``beryllium
                contaminated'' PPE (i.e., contaminated with beryllium in concentrations
                greater than or equal to 0.1 percent by weight), and thus would never
                be triggered by the operations to which OSHA is tailoring these
                standards and because the sanitation standards applicable to
                construction and shipyards provide the necessary protections for the
                storage of PPE (see further discussion below in the summary and
                explanation for paragraph (i)). OSHA is removing paragraphs (h)(2)(v)
                and (h)(3)(iii) because they protect downstream handlers of PPE who (to
                OSHA's knowledge) are not engaged in any tasks that could generate
                airborne exposures at levels of concern. Accordingly, OSHA has
                determined these provisions are unnecessary and should be removed.
                 In light of OSHA's decision to eliminate several of the
                requirements in paragraph (h), OSHA believes that it is unnecessary to
                require the employer to document all of the procedures that were
                previously included in paragraph (f)(1)(i)(H). However, OSHA finds that
                it is appropriate to retain those requirements of paragraph (f)(1) that
                pertain to provisions that OSHA has not eliminated. Specifically, the
                construction and shipyards standards still require the employer to
                ensure that PPE required by the standard is not removed in a manner
                that disperses beryllium into the air (paragraph (h)(2)(ii)). Both
                standards still require the employer to ensure that all reusable
                personal protective clothing and equipment required by this standard is
                cleaned, laundered, repaired, and replaced as needed to maintain its
                effectiveness (paragraph (h)(3)(i)). And, both standards still require
                the employer to ensure that beryllium is not removed from PPE required
                by the standard by blowing, shaking or any other means that disperses
                beryllium into the air (paragraph (h)(3)(ii)). In addition, OSHA has
                decided to revise former paragraph (h)(2)(iv) (renumbered as
                (h)(2)(iii)) to require that the employer ensure that no employee with
                reasonably expected exposure above the TWA PEL or STEL removes personal
                protective clothing or equipment from the worksite unless it is first
                cleaned in accordance with paragraph (h)(3) (see the Summary and
                Explanation for paragraph (h)).
                 OSHA's 2017 final rule would have required employers in
                construction and shipyards to include information pertaining to these
                provisions in their written exposure control plans. For these
                provisions, OSHA agrees with the aforementioned commenters that
                paragraph (f)(1) should retain the documentation requirements that were
                promulgated in the 2017 final rule. Therefore, OSHA is adding a
                requirement for employers to include, in their written exposure control
                plans, procedures for removing, cleaning, and maintaining personal
                protective clothing and equipment in accordance with paragraph (h) of
                this standard. Specifically, OSHA is finalizing its proposal to remove
                paragraph (f)(1)(i)(H), and is adding a new paragraph (f)(i)(F) to each
                standard, instructing employers that their written exposure control
                plans must include such procedures.
                 NABTU also expressed its belief that OSHA must retain the
                standards' procedures for minimizing cross-contamination and migration
                of beryllium, and urged OSHA to retain paragraph (f)(1)(i)(H) (Document
                ID 2240, pp. 5-6). In support, NABTU noted that some workers at a
                beryllium producing facility studied by Virji et al. (2019) who were
                not directly involved in beryllium-related operations nevertheless
                became sensitized to beryllium, including some involved in shutdown
                maintenance, and that the study authors found a strong association
                between dermal exposure and beryllium sensitization (Document ID 2240,
                pp. 5-6). As discussed above in this Summary and Explanation for
                paragraph (f)(1), OSHA does not agree that the Virji study indicates
                that employees in the construction and shipyards industries are
                currently exposed to dermal contact with beryllium in greater-than-
                trace concentrations. OSHA has determined that it is appropriate to
                tailor these standards to abrasive blasting and welding operations, and
                preventing cross-contamination and migration of beryllium-containing
                dust in such operations, where the dust contains only trace amounts of
                beryllium, is only necessary to prevent beryllium-containing dust from
                being re-entrained and creating an additional inhalation risk to
                workers who already have airborne exposure to beryllium at levels of
                concern (e.g., workers in and around beryllium-releasing operations,
                rather than workers in distant areas of the worksite or downstream from
                beryllium-releasing operations).
                 OSHA received one comment on its proposal to revise paragraph
                (f)(1)(ii)(B) to refer simply to ``exposure to'' rather than ``airborne
                exposure to or dermal contact with'' beryllium (84 FR at 53911),
                consistent with other paragraphs in which OSHA proposed to simplify the
                language in a similar manner (e.g., paragraph (f)(1)(i)(A), Written
                exposure control plan;
                [[Page 53938]]
                paragraphs (k)(3)(ii)(A) and (k)(4)(i), Medical surveillance). As
                revised, the paragraph requires the employer to review and evaluate the
                effectiveness of each written exposure control plan and update it, as
                necessary, when notified an employee shows signs or symptoms associated
                with exposure to beryllium. NJH agreed that the proposed change would
                simplify the reading of the standard (Document ID 2211, p. 9). Having
                received no comments opposing this change, OSHA is finalizing this
                provision as proposed.
                 NJH also suggested that if OSHA makes this change, the agency
                should also provide a definition of the term ``exposure'' (Document ID
                2211, p. 9). OSHA disagrees. The term ``exposure'' and closely related
                terms such as ``exposed'' appear in nearly every paragraph of the
                standard, referring variously to airborne exposure, dermal exposure, or
                both. OSHA has carefully written the regulatory text and the
                accompanying summary and explanation to clearly indicate which meaning
                of exposure is intended in each instance, typically by including a
                qualifier such as ``airborne'' or ``dermal'' when a specific type of
                exposure is involved. Because the intended meaning of the term varies
                somewhat from instance to instance, the agency finds that adding a
                definition of ``exposure'' to the standard may lead to confusion and
                misunderstanding regarding many provisions of the standard, and
                maintains that explaining the agency's meaning in each instance of the
                term is appropriate. With respect to paragraph (f)(1)(ii)(B), by
                including no qualifier for the term exposure, OSHA ensures that the
                provision will be triggered whenever an employee shows signs or
                symptoms associated with any type of exposure to beryllium.
                Paragraph (f)(2) Engineering and Work Practice Controls
                 Paragraph (f)(2) of this final rule requires employers to use
                engineering and work practice controls to reduce and maintain employee
                airborne exposure to beryllium to or below the TWA PEL and STEL, unless
                they can demonstrate that such controls are not feasible. If an
                employer demonstrates that it is not feasible to reduce airborne
                exposure to or below the PELs through engineering and work practice
                controls, the employer must implement and maintain engineering and work
                practice controls to reduce airborne exposure to the lowest levels
                feasible and supplement these controls by using respiratory protection
                in accordance with paragraph (g) of this standard.
                 Paragraph (f)(2) of the 2017 construction and shipyards standards
                also required the implementation of engineering and work practice
                controls to limit employee airborne exposure to beryllium. However, in
                addition to the requirement to implement controls where exposures
                exceed the TWA PEL or STEL, the 2017 standards required employers to
                implement at least one engineering or work practice control whenever
                exposures exceeded the action level. Specifically, paragraph (f)(2)(i)
                of the 2017 standards required that where exposures are, or can
                reasonably be expected to be, at or above the action level, employers
                were to implement at least one of the following control measures to
                reduce airborne exposure: (1) Material and/or process substitution
                (paragraph (f)(2)(i)(A)); (2) isolation, such as ventilated partial or
                full enclosures (paragraph (f)(2)(i)(B)); (3) local exhaust
                ventilation, such as at the points of operation, material handling, and
                transfer (paragraph (f)(2)(i)(C)); or (4) process control, such as wet
                methods and automation (paragraph (f)(2)(i)(D)). Paragraph (f)(2)(ii)
                exempted an employer from this requirement if the employer can
                establish that the controls are infeasible, or that airborne exposure
                is below the action level, using no fewer than two representative
                personal breathing zone samples taken at least seven days apart, for
                each affected operation. Additionally, if after implementing at least
                one of the controls required by paragraph (f)(2)(i), airborne exposures
                still exceeded the PEL or STEL, paragraph (f)(2)(iii) required the
                employer to implement additional engineering and work practice controls
                to reduce exposure below these limits. If the employer demonstrated
                that it is not feasible to reduce exposures below the TWA PEL and STEL
                through engineering and work practice controls, paragraph (f)(2)(iv)
                required the employer to implement controls to reduce exposure to the
                lowest feasible level and supplement the controls through the use of
                respirator protection in accordance with paragraph (g) of the standard.
                 In the 2019 NPRM, OSHA proposed two changes to paragraph (f)(2) of
                the construction and shipyards standards. First, OSHA proposed to
                remove the requirement that employers implement engineering and work
                practice controls at the action level and instead to require such
                controls only for operations where exposures exceed, or can reasonably
                be expected to exceed, the PEL or STEL. Second, OSHA proposed to
                combine the remaining provisions of paragraphs (f)(2)(i) through (iv)
                into a single paragraph (f)(2).
                 The requirement to implement controls at or above the action level
                in the 2017 construction and shipyard standards was derived from the
                general industry standard, which requires that employers implement at
                least one type of engineering control for each operation in a beryllium
                work area that releases airborne beryllium, unless the employer can
                demonstrate that airborne exposure is below the action level or that
                the controls are infeasible. In the 2017 final rule, OSHA found that
                the action level was a ``reasonable and administratively convenient
                benchmark'' when attempting to address significant risk below the PELs
                while not unnecessarily burdening employers where controls would
                provide little or no benefit (82 FR at 2674). At the same time, the
                agency recognized that OSHA health standards usually require
                engineering controls only where exposures exceed the PELs (82 FR at
                2673).
                 In this rulemaking, OSHA has reconsidered this approach to
                engineering and work practice controls in the construction and
                shipyards contexts. Because exposure to beryllium in construction and
                shipyards is almost exclusively limited to abrasive blasting and
                welding, OSHA preliminarily determined in the 2019 NPRM that requiring
                engineering controls where exposures are between the action level and
                the PEL is not reasonably appropriate for these industries. OSHA
                reasoned that the technological feasibility analysis for the 2017 final
                rule showed abrasive blasting with mineral grit typically generates
                airborne beryllium exceeding the PEL even after implementing
                engineering controls, thus triggering requirements for respirator use
                for employees where exposures remain above the PEL (82 FR at 2584).
                Furthermore, welders in shipyards are already required to use local
                exhaust ventilation as well as air-line respirators (84 FR at 53910-
                11). Thus, in the context of abrasive blasting and welding, the
                previous requirement to implement one engineering control where
                exposure are between the action level and the PEL will not result in
                any additional protection to workers. Accordingly, OSHA proposed to
                require engineering and work practice controls in construction and
                shipyards only where exposures exceed the TWA PEL or STEL. As
                acknowledged in the 2017 final rule, this approach is consistent with
                OSHA's typical approach to health standards (84 FR at 53910).
                 OSHA received several comments on this proposed change. NABTU
                stated
                [[Page 53939]]
                generally that OSHA should retain the 2017 standards' protections
                against airborne exposures in paragraph (f)(2) (Document ID 2240, p. 6)
                and NJH commented that they ``agree with OSHA that it is important to
                retain the requirement to implement engineering and work practice
                controls to achieve compliance with the PEL and STEL'' (Document ID
                2211, p. 9). AFL-CIO specifically urged OSHA to retain the requirement
                to require engineering and work practice controls at the action level,
                arguing that the construction standard should require the same level of
                protection as the general industry standard to avoid creating a ``two-
                tiered protection system'' (Document ID 2210, p. 7). They argued that
                not requiring engineering controls at the action level ``places any
                potentially exposed workers between the action level and the PEL at
                risk . . . by not requiring the hierarchy of controls for these
                workers'' \21\ (Document ID 2210, p. 7). In post-hearing comments, they
                further argued that ``[t]he hierarchy of controls is the most effective
                way to reduce exposures by controlling releases at the source, rather
                than near the worker,'' as the 2017 final rule required wherever
                beryllium exposures meet or exceed the action level (Document ID 2244,
                p. 15).
                ---------------------------------------------------------------------------
                 \21\ The ``hierarchy of controls'' refers to the policy of
                requiring employers to install and implement all feasible
                engineering and work practice controls before relying on respirator
                use to protect employees (see 82 FR at 2476).
                ---------------------------------------------------------------------------
                 AFL-CIO additionally cited USW's comments on the 2015 beryllium
                NPRM for the proposition that engineering and work practice controls
                should be required ``at the earliest, yet feasible time'' (Document ID
                2244, p. 15). In the cited comments, USW had argued for requiring
                engineering or work practice controls for any operation generating
                airborne beryllium particulate, as USW and Materion had jointly
                recommended for general industry, noting that such a requirement ``is
                entirely feasible, and would reduce a risk OSHA has shown to be
                significant'' (Document ID 1681, p. 11).
                 OSHA disagrees with AFL-CIO's assertion that triggering controls on
                the PELs will reduce protection for workers in the construction and
                shipyards industries. As explained in the 2019 NPRM, OSHA's
                technological feasibility analysis concluded that workers performing
                abrasive blasting with mineral grit would typically experience
                exposures in excess of the TWA PEL even after implementing engineering
                controls (84 FR at 53910; 82 FR at 2584). Therefore, in the case of
                abrasive blasting, the requirement to implement at least one
                engineering or work practice control where exposure meets or exceeds
                the action level would achieve no further protections than the proposed
                requirement to implement engineering and work practice controls only
                when exposure exceeds the PEL. Similarly, in the case of welding, the
                welding standard for shipyards already requires the use of local
                exhaust ventilation and air line respirators when welding with
                beryllium-containing base or filler metals (29 CFR 1915.51(d)(2)(iv)).
                Therefore, the previous requirement would likewise not provide any
                further protections for employees exposed to beryllium through welding;
                work practice controls are already being used regardless of level of
                exposure.
                 As explained above in the Summary and Explanation for paragraph
                (f)(1), OSHA has determined, based on the record, that beryllium
                exposures in construction and shipyards are limited almost exclusively
                to abrasive blasting and a limited number of welding operations in
                shipyards, and that it is appropriate to tailor certain provisions of
                the beryllium standards to these operations. Because in these
                operations the requirement to implement engineering and work practice
                controls where exposures are between the action level and PEL would
                provide no additional protection to workers, OSHA has determined it is
                appropriate to remove this requirement from the construction and
                shipyards standards.
                 At the same time, OSHA agrees with AFL-CIO and NJH that reliance on
                the hierarchy of controls remains important for protecting employees in
                the construction and shipyards sector. That is why the agency has
                retained a specific requirement in paragraph (f)(2) for construction
                and shipyard employers to implement engineering and work practice
                controls where feasible to achieve compliance with the PEL and STEL, as
                OSHA has required in other health standards. Where it is not feasible
                to reduce exposures to or below the PELs, paragraph (f)(2) continues to
                require employers to implement and maintain engineering and work
                practice controls to reduce airborne exposure to the lowest levels
                feasible and supplement these controls by using respiratory protection
                in accordance with paragraph (g) of the standard. This approach is
                consistent with OSHA's application of the hierarchy of controls to all
                other standards applicable to construction and shipyards that require
                the use of engineering controls to minimize toxic dust. For example,
                the ventilation standard in construction, 29 CFR 1926.57(f)(2)(ii),
                requires the concentration of respirable dust or fume in the breathing
                zone of the abrasive blasting operator or any other worker to remain
                below the levels specified in 29 CFR 1926.55.
                 After reviewing the comments received and the record as a whole,
                OSHA is finalizing its proposal to revise paragraph (f)(2) to remove
                the requirement that employers implement engineering and work practice
                controls wherever exposures are between the action level and PEL. OSHA
                received no comments on its additional proposal to combine the
                remaining provisions of paragraphs (f)(2)(i) through (iv) into a single
                paragraph (f)(2) and is therefore finalizing paragraph (f)(2) as
                proposed.
                Paragraph (g) Respiratory Protection
                 Paragraph (g) of this final rule requires the provision and use of
                respiratory protection under several conditions to protect against
                exposure to beryllium. Paragraph (g)(1) requires employers to provide
                respiratory protection at no cost to employees and to ensure that
                employees utilize such protection in the following circumstances: (i)
                During periods necessary to install or implement feasible engineering
                and work practice controls where airborne exposure exceeds, or can
                reasonably be expected to exceed, the TWA PEL or STEL (paragraph
                (g)(1)(i)); (ii) during operations, including maintenance and repair
                activities and non-routine tasks, when engineering and work practice
                controls are not feasible and airborne exposure exceeds, or can
                reasonably be expected to exceed, the TWA PEL or STEL (paragraph
                (g)(1)(ii)); (iii) during operations for which an employer has
                implemented all feasible engineering and work practice controls when
                such controls are not sufficient to reduce airborne exposure to or
                below the TWA PEL or STEL (paragraph (g)(1)(iii)); and (iv) when an
                employee who is eligible for medical removal under the standard chooses
                to remain in a job with airborne exposure at or above the action level
                (paragraph (g)(1)(iv)).
                 This final rule includes one change from paragraph (g)(1) as
                promulgated in the 2017 final rule. In the NPRM, OSHA proposed removing
                previous paragraph (g)(1)(iv), which required the use of respiratory
                protection during emergencies, from both the construction and shipyards
                standards.\22\ As explained previously in this preamble in the summary
                and explanation for paragraph (b), OSHA also proposed removing the
                definition of ``emergency''--defined as ``any uncontrolled release of
                airborne
                [[Page 53940]]
                beryllium''--from both standards. OSHA reasoned that any uncontrolled
                release of airborne beryllium in these industries, such as from the
                failure of blasting control equipment or a spill of abrasive blasting
                media, would only occur during the performance of routine tasks--i.e.,
                abrasive blasting and welding--that are already associated with the
                airborne release of beryllium (84 FR at 53911). During these processes,
                OSHA anticipates that employees working in the immediate vicinity of an
                uncontrolled release of airborne beryllium would already be using
                respiratory protection pursuant to the other provisions in paragraph
                (g)(1).
                ---------------------------------------------------------------------------
                 \22\ As a result, OSHA also proposed to renumber paragraph
                (g)(1)(v) as (g)(1)(iv) in both standards.
                ---------------------------------------------------------------------------
                 Three commenters addressed OSHA's proposal to strike paragraph
                (g)(1)(iv). In both their pre-hearing comments and at the public
                hearing, the AFL-CIO argued that OSHA ``makes the faulty assumption''
                that all types of worksites and emergencies--i.e., fires, floods,
                chemical releases--will create the same conditions and warrant the same
                type of response to beryllium exposure (Document ID 2210, Comments, p.
                5; Tr., Document ID 2222, p. 119). They further commented that although
                workers with the highest beryllium exposures (i.e., abrasive blasters)
                may use full protective equipment, other workers that do not typically
                wear such equipment might be exposed in the case of an emergency or
                even during normal working conditions (Document ID 2210, Comments, p.
                5). Finally, they argued that it is important to tailor emergency
                procedures to the specific type of work environment (Document ID 2210,
                Comments, p. 5).
                 North America's Building Trade Unions (NABTU) likewise commented
                that breaches in abrasive blasting containments could expose workers to
                beryllium who are not otherwise typically exposed (Tr., Document ID
                2222, pp. 86, 91-92; Document ID 2240, pp. 7-8). NABTU conceded that,
                with respect to abrasive blasters and welders, the only type of
                emergency it could envision was a breach in the abrasive blasting
                containment (Tr., Document ID 2222, pp. 102-03). However, in their
                post-hearing brief, NABTU argued that OSHA's proposal ignores workers
                who perform shut-down maintenance, decontamination, and clean-up work
                in beryllium processing facilities (Document ID 2240, pp. 7-8). The
                union cited records from a primary beryllium facility indicating that
                the facility had experienced leaks, spills, and evacuations due to
                events such as fires, which could result in the unexpected release of
                beryllium. NABTU argued that the removal of emergency provisions in the
                construction standard would result in different protective measures
                being applied for general industry and construction employees in these
                facilities. Finally, NABTU urged the importance of including exposures
                from emergencies in medical and work histories ``to ensure that
                pertinent information about potential exposures is not overlooked.''
                 NJH agreed with OSHA that abrasive blasting and welding operations
                may not result in emergencies (Document ID 2211, p. 6). However, NJH
                further stated that, because the uncontrolled release of beryllium can
                occur at any time during operations such as abrasive blasting, ``all
                workers should be put in respirators and they should be cleaned and
                maintained as detailed in the beryllium standard for general industry''
                (Document ID 2211, p. 9). NJH also commented that, although they agree
                the term ``emergency'' can be struck from the standards, any exposure
                above the PEL should trigger medical surveillance that was previously
                provided after an emergency--that is, without regard to the requirement
                in paragraph (k)(1)(i)(B) that employees be exposed above the action
                level for more than 30 days per year (Document ID 2211, p. 6-7; Tr.,
                Document ID 2222, pp. 56-7).
                 After considering these comments and the record as a whole, OSHA is
                finalizing its proposal to eliminate the emergency provision from
                paragraph (g). With respect to some commenters' concerns that OSHA is
                overlooking workers or operations outside of abrasive blasters and
                welders, the agency makes several observations. First, paragraph
                (g)(1)(ii) requires employees engaged in maintenance, repair
                activities, and non-routine tasks to wear respiratory protection when
                engineering and work practice controls are not feasible and airborne
                exposure exceeds, or can reasonably be expected to exceed, the TWA PEL
                or STEL. This provision would apply in scenarios such as breached
                containments or spills that create a risk of airborne exposure.
                Moreover, paragraph (g)(1)(iii) requires respirator use during
                operations where feasible engineering and work practice controls are
                not sufficient to reduce airborne exposure to or below the TWA PEL or
                STEL. As OSHA has previously noted, any employees who are not abrasive
                blasters or welders but who are in the vicinity of such operations--
                such as pot tenders or cleanup workers--are already required to wear
                respiratory protection because of their proximity to operations known
                to create airborne beryllium exposures above the TWA PEL or STEL (see
                84 FR at 53920).\23\
                ---------------------------------------------------------------------------
                 \23\ In the 2017 Final Rule, OSHA found that pot tender and
                cleanup work are usually remote from the abrasive blasting operation
                or occur prior to or after the operation is complete (82 FR at 2686-
                87). As such, OSHA notes that only a subset of these workers (those
                performing their tasks during and adjacent to the abrasive blasting
                operation) would potentially be exposed during an event such as a
                containment rupture.
                ---------------------------------------------------------------------------
                 Second, as with other areas of the proposal, the commenters suggest
                that OSHA is ignoring construction and shipyards workers in operations
                outside of abrasive blasting and welding who may be exposed to
                beryllium. The commenters primarily point to workers who perform
                construction work at general industry sites that process beryllium and
                workers who dress non-sparking tools (see, e.g., Document ID 2210,
                Comments, pp. 4-5; 2240, pp. 7-8). As explained previously in this
                preamble, OSHA repeatedly requested information and data on application
                groups outside of abrasive blasting and welding, but no commenters have
                provided data sufficient for OSHA to draw any conclusions about
                exposures in these contexts. For the same reason, OSHA lacks any
                information on potential exposures from ``unexpected releases of a
                chemical, fires, [or] floods'' in these contexts (see AFL-CIO, Document
                ID 2210, Comments, p. 5). For the reasons already stated, OSHA had
                determined that, given this lack of data, it is appropriate to tailor
                the construction and shipyards beryllium standards to those operations
                for which the agency has sufficient data to demonstrate worker exposure
                to beryllium at levels of concern, to properly characterize and
                evaluate the exposures, and to develop appropriate measures to address
                them. Moreover, as discussed previously, OSHA expects that beryllium
                exposures during processes outside of abrasive blasting and welding, if
                they occur, are rare. Given the rarity of these exposures during normal
                processes, the agency expects that emergency exposures in these
                contexts would be exceedingly rare, to the point of not being
                reasonably foreseeable. For a full discussion of OSHA's reasoning on
                these points, see the summary and explanation of paragraph (f)(1).
                 In the operations for which OSHA does have sufficient data (i.e.,
                abrasive blasting and welding operations), the agency has determined
                that it is unnecessary to trigger respiratory protection requirements
                on the occurrence of an emergency. As OSHA noted in the NPRM, and as at
                least one commenter agreed (Document ID 2211,
                [[Page 53941]]
                p. 6), any uncontrolled release of beryllium in these operations will
                not create exposures that differ from the normal conditions of work and
                workers should already be protected by the other provisions of
                paragraph (g). Accordingly, OSHA is finalizing its proposal to remove
                paragraph (g)(1)(iv) from the beryllium standards for construction and
                shipyards.\24\
                ---------------------------------------------------------------------------
                 \24\ As to NJH's suggestion that, in light of the removal of
                emergency triggers in the standards, OSHA should amend paragraph (k)
                to require medical surveillance for any exposure above the action
                level or PEL, rather than for those exposed over the action level
                for 30 days, OSHA addresses this in the summary and explanation of
                paragraph (k). Likewise, with respect to NABTU's comment that
                exposures during emergencies should be included in employees'
                medical and work histories, OSHA addresses this comment in the
                summary and explanation for paragraph (k)(4). Finally, NJH's comment
                that all respirators should be cleaned as required in general
                industry is addressed in the summary and explanation of paragraphs
                (h).
                ---------------------------------------------------------------------------
                Paragraph (h) Personal Protective Clothing and Equipment
                 Paragraph (h) of the beryllium standards for the construction and
                shipyards industries (29 CFR 1926.1124(h) and 1915.1024(h),
                respectively) provides requirements relating to personal protective
                clothing and equipment (PPE). Paragraph (h)(1) requires employers to
                provide and ensure the use of PPE in accordance with the written
                exposure control plan required under paragraph (f)(1) of this standard
                and OSHA's Personal Protective and Life Saving Equipment standards for
                construction (29 CFR part 1926, subpart E) where airborne exposure
                exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL.
                Employers are expected to choose the appropriate type of PPE for their
                employees based on the results of the employer's hazard assessment (82
                FR at 2682), and the employer must list in the written exposure control
                plan the PPE that is required under paragraph (h)(1) (see paragraph
                (f)(1)(i)(C)). Paragraph (h)(2) governs the removal of PPE,\25\ and
                requires employers to ensure that each employee removes PPE required by
                this standard at the end of the work shift or at the completion of all
                tasks involving beryllium, whichever comes first, and that PPE is not
                removed in a manner that disperses beryllium into the air.
                Additionally, under the PPE cleaning and replacement provisions in
                paragraph (h)(3), employers must ensure that all reusable PPE required
                by the standard is cleaned, laundered, repaired, and replaced as needed
                to maintain its effectiveness, and that beryllium is not removed from
                PPE by blowing, shaking or any other means that disperses beryllium
                into the air.
                ---------------------------------------------------------------------------
                 \25\ Paragraph (h)(2) of the construction and shipyards
                beryllium standards was titled ``Removal and storage.'' As explained
                below, OSHA is removing the provisions in paragraph (h)(2) that
                pertain to the storage of PPE. Accordingly, OSHA has revised the
                title of paragraph (h)(2) to read ``Removal of PPE.''
                ---------------------------------------------------------------------------
                 This rule finalizes the proposed changes to paragraph (h) in the
                2019 NPRM, including OSHA's proposal to remove the requirement,
                formerly designated paragraph (h)(1)(ii), to provide and ensure the use
                of PPE when there is reasonably expected dermal contact with beryllium
                (see 84 FR at 53913). As explained in the NPRM, OSHA did not intend for
                the standards' provisions aimed at protecting workers from the effects
                of dermal contact with beryllium to apply to operations that involve
                materials containing only trace amounts of beryllium absent significant
                airborne exposures (84 FR at 53912 (citing 83 FR at 19938); see also 84
                FR at 53905-06). In the construction and shipyards sectors, the
                operations that cause airborne exposure to beryllium that can exceed
                the TWA PEL or STEL are either abrasive blasting operations, which
                involve materials or generate particulate matter containing less than
                0.1 percent beryllium by weight, or welding operations in shipyards,
                where the process and materials do not present a dermal contact risk.
                OSHA thus proposed to remove the requirement to provide and ensure the
                use of PPE when there is reasonably expected dermal contact with
                beryllium because it was not aware of any operations in the
                construction or shipyard sectors in which dermal contact with beryllium
                would occur at levels above trace amounts, making such a provision
                unnecessary.
                 OSHA received comments challenging the underlying premise that
                abrasive blasting operations and welding operations in shipyards would
                not result in dermal contact with beryllium at levels above trace
                amounts. Specifically, NJH, citing a study indicating that beryllium
                was ``present at a concentration of 4 parts per million (ppm) in coal
                slag samples analyzed prior to blasting, and measured airborne
                beryllium concentrations of up to 9.5 [mu]g/m3 during abrasive blasting
                tasks,'' questioned OSHA's determination that abrasive blasting
                operations only contain or produce materials containing trace
                concentrations of beryllium (Document ID 2211, p. 7). Additionally, USW
                contested OSHA's statement that skin or surface contamination is not
                likely to result from welding operations in shipyards, stating that
                ``beryllium-copper rods typically contain 2 percent beryllium and at
                least one manufacturer warns users against grinding, cutting or
                polishing the weld without proper protection,'' and alleging that
                ``welds are often subjected to the operations the manufacturer warned
                against, sometimes by workers other than welders'' (Document ID 2212,
                p. 3; see also Document ID 2222, Tr. 31 (USW stating that it believes
                that welding rods containing up to 2 percent are sometimes used, but
                USW does not know how often)). In support, USW pointed to an
                information sheet on beryllium copper welding wire and rods published
                by U.S. Alloy Company (Document ID 2212, Attachment A).
                 OSHA responded to these comments in the summary and explanation
                section for paragraph (f). In short, NJH's concern is misplaced because
                the 4 ppm of beryllium documented in the coal slag samples in the study
                that NJH cited, which would amount to 0.0004 percent by weight, is a
                trace amount within OSHA's usage of that term (0.1 percent beryllium by
                weight or less). So too is USW's concern about skin contamination
                during welding operation. As OSHA explained in the NPRM, the agency's
                understanding that the amount of beryllium oxide to form on the surface
                of materials being welded in shipyards is likely far lower than would
                be expected based solely on the percentage of beryllium in the base
                metal is based on a study by Cole, 2007 (84 FR at 53906; see Document
                ID 0885, p. 685). USW's comment does not discuss this study, nor does
                it offer evidence to undermine the conclusions that OSHA has drawn from
                it (see above, Summary and Explanation for paragraph (f)(1)). The
                information sheet from U.S. Alloy Company that USW included with its
                comment makes no mention of a dermal contact risk from the welding rods
                used in the operation, and instead warns that action ``should be taken
                to avoid inhaling the welding fumes'' (Document 2212, Attachment A).
                OSHA finds that the lack of any mention of a risk of dermal contact
                with beryllium in the information sheet supports OSHA's determination
                that dermal exposures are not a concern in welding operations.
                 OSHA also received several comments expressing concern that, by
                removing from the standards the provisions that are solely aimed at
                preventing dermal contact with beryllium (including paragraph
                (h)(1)(ii)), OSHA would expose workers to a significant risk of harm,
                and would be abandoning its position in the 2017 final rule that all
                construction and shipyard industry employees within the scope of the
                standards need protection against dermal contact with beryllium
                (Document ID 2210, p. 4, 7; 2212, p. 4;
                [[Page 53942]]
                2239, p. 1; 2240, p. 5; 2244, pp. 8-10; see also Document ID 2222, Tr.
                117-18). Relatedly, commenters expressed concern that OSHA's proposed
                revisions would not sufficiently protect workers who may be exposed to
                dermal contact with dust, fumes, or mists containing beryllium in
                greater-than-trace concentrations in operations other than abrasive
                blasting and welding, such as maintenance, renovation, repair and
                demolition operations at locations where beryllium operations were
                performed; maintenance of non-sparking tools; or, in new operations
                that construction and shipyards employers may undertake in the future
                (Document ID 2202, p. 2; 2208, pp. 6-7; 2210, pp. 4-5, 7; 2211, pp. 1,
                7-8, 10; 2212, pp. 2-4; 2213, pp. 3-4; 2239, pp. 1-2; 2240, pp. 3-5;
                2242, pp. 2-3; 2244, p. 13; see also Document ID 2222, Tr. 17-19, 32,
                47-48, 84-87, 114-15, 131).
                 OSHA also fully responded to these comments in the Summary and
                Explanation for paragraph (f). In short, OSHA has not changed its
                position on the employees who require protection from dermal contact
                with beryllium in the construction and shipyards sectors, nor has it
                changed its position that all employers with operations that fall
                within the scope of the standards must comply with their terms. OSHA
                has not changed (or proposed to change) the scope of the standards,
                which are broadly drawn to cover all occupational exposure to beryllium
                in all forms, compounds, and mixtures in construction, except those
                articles and materials specifically exempted. The standards continue to
                require employers to apply provisions related to dermal contact,
                through the provision of PPE and other measures, when airborne
                exposures exceed the TWA PEL or STEL. OSHA's removal of the provisions
                solely aimed at preventing dermal contact with beryllium without
                airborne exposures furthers the agency's intent to tailor the
                construction and shipyards beryllium standards to the specific
                operations on which it has data documenting significant exposures of
                concern (i.e., abrasive blasting operations and welding operations in
                shipyards).
                 When the agency applied some of the ancillary provisions that it
                developed for general industry employers into the construction and
                shipyards standards in the 2017 final rule (such as the provisions
                triggered on dermal contact with beryllium or beryllium contamination),
                OSHA did not fully account for the trace levels of beryllium involved
                in construction and shipyards operations. As OSHA clarified in the 2018
                general industry DFR (83 FR at 19938-39), OSHA only intended the
                provisions triggered by dermal contact with beryllium or beryllium
                contamination to apply to dust, fumes, mists, or solutions containing
                beryllium in concentrations greater than or equal to 0.1 percent by
                weight. The agency did not intend to regulate contact with trace
                beryllium absent significant airborne exposures. Given that abrasive
                blasting operations do not involve materials containing beryllium in
                more than trace concentrations, and the welding operations in shipyards
                that create airborne exposures of concerns do not pose a risk of skin
                contamination, OSHA recognized in the 2019 NPRM that the provisions in
                the construction and shipyards beryllium standards triggered on dermal
                contact with beryllium or beryllium contamination (such as paragraph
                (h)(i)(ii)) would never be triggered (see, e.g., 84 FR at 53906,
                53913).\26\
                ---------------------------------------------------------------------------
                 \26\ OSHA notes that the term ``beryllium contamination'' is not
                defined in the construction and shipyards standards. In the DFR for
                general industry, to clarify OSHA's intent that the standard's
                requirements aimed at reducing the effect of dermal contact with
                beryllium should not apply to areas where there are no processes or
                operations involving materials containing at least 0.1% beryllium by
                weight, the DFR defined ``beryllium-contaminated or contaminated
                with beryllium'' and added those terms to certain provisions in the
                standard. The DFR defined those terms as follows: ``Contaminated
                with beryllium and beryllium-contaminated mean contaminated with
                dust, fumes, mists, or solutions containing beryllium in
                concentrations greater than or equal to 0.1 percent by weight'' (83
                FR at 19939).
                ---------------------------------------------------------------------------
                 The comments received in response to the NPRM have not convinced
                OSHA otherwise. Although OSHA continues to recognize the possibility
                that some construction and shipyards workers could be exposed to
                beryllium through activities other than abrasive blasting and welding,
                the record still lacks key data about these potential additional
                sources of exposure, including how often they occur, who is exposed,
                the duration of the exposures, the type and extent of exposure, or any
                controls that may be in place to address them. Specifically, as
                discussed below, OSHA finds that the record lacks evidence that
                exposures in any construction or shipyards operation would involve a
                risk of dermal contact with beryllium in greater-than-trace amounts.
                 As explained more fully in the Summary and Explanation for
                paragraph (f), a number of commenters responded to OSHA's request for
                information on any additional application groups (industries,
                occupations, processes, etc.) with potential exposure to beryllium in
                the construction and shipyards sectors beyond abrasive blasting and
                welding operations (see 84 FR at 53922; Document ID 2222, Tr. 33-35;
                44-45; 75-76; 95-96; 125-26), but their comments in many cases relied
                on anecdotal or unverifiable assertions about additional exposure
                sources. Some commenters submitted studies regarding operations that,
                in the commenter's view, could expose employees to greater-than-trace
                concentrations of beryllium at general industry facilities.\27\ But the
                studies do not contain relevant exposure data, nor do they reflect the
                conditions that employees are likely to encounter at general industry
                workplaces today. Although some commenters alleged that construction
                and shipyards workers could be exposed to beryllium in greater-than-
                trace concentrations during the dressing or sharpening of beryllium-
                containing non-sparking tools, other comments and hearing testimony
                more persuasively indicated that the dressing or sharpening of non-
                sparking tools is not an exposure source of concern for workers in the
                construction and shipyards sectors covered by the beryllium standards.
                For example, at the public hearing, a representative from NABTU,
                indicated that although non-sparking tools are used in the
                petrochemical industry, NABTU could not find examples of tradespeople
                dressing and sharpening the tools (Document ID 2222, Tr. 88). Indeed,
                Materion commented that at least one supplier of beryllium containing
                non-sparking tools offers tool sharpening as a free service to its
                customers (Document ID 2237, p. 3).
                ---------------------------------------------------------------------------
                 \27\ OSHA also asked AFL-CIO and NABTU at the hearing whether
                workers needed to be protected against dermal contact with only
                trace concentrations of beryllium (see Document ID 2222, Tr. 94-95,
                121-22). As Materion and CISC pointed out in their post-hearing
                submissions (Document IDs 2237, p. 1; 2241, p. 8), neither party
                directly responded to OSHA's question.
                ---------------------------------------------------------------------------
                 Accordingly, OSHA is tailoring certain aspects of the final
                construction and shipyards beryllium standards to the operations for
                which the agency has sufficient data to demonstrate worker exposure to
                beryllium at levels of concern, to properly characterize and evaluate
                the exposures, and to develop appropriate measures to address them
                (i.e., abrasive blasting operations and limited welding operations in
                shipyards). Tailoring the construction and shipyards beryllium
                standards to these operations ensures that the standards are no more
                complex or onerous than is needed to protect workers, which OSHA
                believes will improve compliance and thereby better protect workers.
                [[Page 53943]]
                 Removing the provisions triggered on dermal contact with beryllium
                (such as former paragraph (h)(1)(ii)) reflects OSHA's intent to
                regulate contact with trace beryllium only when it causes airborne
                exposures of concern. OSHA acknowledged in the 2017 final rule that
                there is ``potential for exposure'' in operations other than abrasive
                blasting and welding (and fashioned the scope of the standards
                accordingly), but never determined that workers in the construction
                industry are currently at risk of dermal contact with greater-than-
                trace amounts of beryllium when working at general industry worksites,
                or when dressing or sharpening non-sparking tools. Where OSHA did
                originally include provisions aimed solely at dermal contact in the
                construction and shipyards standards that it now intends to remove,
                including paragraph (h)(i)(ii), it was due to the agency borrowing
                provisions from the general industry standard without appropriately
                accounting for the trace exposures in abrasive blasting and welding as
                they pertain to dermal contact. Inclusion of these provisions was not
                based on a finding by OSHA that the provisions were necessary to
                address exposures beyond abrasive blasting and welding. OSHA finds that
                the standards as revised will maintain protections in all likely
                exposure scenarios while more appropriately addressing the operations
                from which exposures regularly occur.
                 Multiple commenters also expressed concern that OSHA's proposed
                removal of the provisions that target dermal contact with beryllium
                would result in insufficient protection for employees who work near, or
                in support of, abrasive blasting operations, such as pot tenders and
                clean-up helpers (see Document ID 2210, p. 4; 2211, p. 8; 2239, p. 3).
                Particularly, AFL-CIO commented that previously-submitted evidence in
                the record indicates that ``bystander'' workers are not typically
                protected against exposure to beryllium to the same extent as workers
                directly involved in abrasive blasting operations, and claimed that
                OSHA has ``proposed to revoke protections that would protect against an
                increased risk of cumulative inhalation and skin exposures even when
                there are significant airborne exposures, especially among those
                working near operations with significant airborne exposures'' (Document
                ID 2210, p. 4 (citing Document IDs 2118, 2129, and 2135); see also
                Document ID 2222, Tr. 117-18, 122-23). AFL-CIO also claimed that
                ``[r]espirators and other PPE do nothing to address bystander exposure
                and leave wide variability in the times they are worn'' (Document ID
                2239, p. 3). USW also commented at the hearing that ``even though the
                blasters, the people who were actually engaged in an operation may be
                well protected, there may be bystanders who may be exposed to things
                that escape from containment or that are left over after the
                containment's removed'' (Document ID 2222, Tr. 45).
                 OSHA has always intended for the construction and shipyards
                beryllium standards to protect workers who support, or are bystanders
                to, abrasive blasting operations, and OSHA's beryllium standards
                protect such workers through various mechanisms, including the
                requirement for such workers to wear PPE when they have reasonably
                expected airborne exposure to beryllium. When the agency promulgated
                the standards in 2017, OSHA concluded that ``pot tenders/helpers, and
                cleanup workers have the potential for significant airborne beryllium
                exposure during abrasive blasting operations and during cleanup of
                spent abrasive material'' and thus ``require protection under the
                beryllium standards'' (82 FR at 2638). Additionally, OSHA determined in
                the 2019 final rule that, despite partial overlap between the
                requirements of the beryllium standards and other existing OSHA
                standards, OSHA could not revoke paragraph (h) in its entirety because
                ``[s]ome workers exposed to beryllium in construction and shipyards,
                such as abrasive blasting helpers, would not be fully protected if OSHA
                revoked the requirements for PPE in their entirety.'' 84 FR 51394. OSHA
                has not wavered from its position that abrasive blasting support and
                bystander workers must be protected against potential airborne exposure
                to beryllium.
                 Paragraph (h)(1) requires employers to provide and to ensure the
                use of PPE for abrasive blasting support workers and other bystanders
                when those employees are reasonably expected to have airborne exposure
                to beryllium at levels above the TWA PEL or STEL. Whether or not such
                workers have tended to wear PPE with the same consistency as abrasive
                blasting operators, these standards expressly require such workers to
                use appropriate PPE whenever they have reasonable expected airborne
                exposure to beryllium above the TWA PEL or STEL. This protects abrasive
                blasting support workers and bystanders from the incremental additional
                beryllium load caused by re-entrainment of trace beryllium where there
                is already significant airborne exposure, while maintaining OSHA's
                intent that dermal contact with trace beryllium alone did not require
                protections (84 FR at 53912 (citing 83 FR at 19938); see also 84 FR at
                53905-06).
                 As further discussed below, and in the Summary and Explanation for
                paragraph (f), such workers are also protected from exposure to
                airborne beryllium by several other provisions, including the PPE
                removal and cleaning provisions, the requirements to include certain
                procedures in the written exposure control plan (paragraph (f)(1)), and
                the housekeeping requirements in paragraph (j). AFL-CIO is thus
                incorrect that the revised beryllium standards do not protect abrasive
                blasting support workers and bystanders when there are significant
                airborne exposures.
                 This rule also finalizes OSHA's proposed modifications to
                paragraphs (h)(2) and (3) of the standards, with two exceptions in
                paragraph (h)(2). In the NPRM, OSHA proposed to revise the language of
                several provisions in paragraphs (h)(2) and (3) (see 84 FR at 53913-
                14). First, OSHA proposed to revise paragraph (h)(2)(i) so that it
                requires each employee to remove PPE required by the standards at the
                end of the work shift or, at the completion of all tasks involving
                beryllium, whichever comes first. To do this, OSHA proposed to remove
                the qualifier indicating that workers should remove ``beryllium
                contaminated'' PPE, and instead add language indicating that workers
                should remove PPE ``required by this standard.'' OSHA also proposed
                removing the phrase requiring PPE to be removed when it becomes
                ``visibly contaminated with beryllium.'' OSHA considers a surface to be
                contaminated with beryllium when it has been contaminated with dust,
                fumes, mists, or solutions containing beryllium in concentrations
                greater than or equal to 0.1 percent by weight, and OSHA explained that
                removing the ``beryllium contaminated'' and ``visibly contaminated with
                beryllium'' language reflects the agency's understanding that the data-
                supported operations that create exposures at levels of concern in
                these industries (abrasive blasting and some welding in shipyards) will
                not create a beryllium-contaminated surface.
                 OSHA explained in the NPRM, however, that where employees working
                with materials containing trace concentrations of beryllium nonetheless
                have the potential for airborne exposure above the TWA PEL or STEL, and
                would thus still be required to use PPE under paragraph (h)(1), they
                would likely be working in highly dusty environments that could
                accumulate large amounts of dust on their PPE (84
                [[Page 53944]]
                FR at 53913). In those situations, the proposed paragraph (h)(2)(i)
                would require employees to remove their PPE at the end of the work
                shift or when all tasks involving beryllium have completed, whichever
                comes first to prevent the dust on the PPE from being re-entrained into
                the air and contributing to the airborne exposure of workers who
                already are, or can reasonably be expected to be, exposed above the TWA
                PEL or STEL.
                 For the same reason, OSHA also proposed in the NPRM to replace the
                qualifier in paragraph (h)(2)(ii) that PPE be ``beryllium
                contaminated,'' and instead add language clarifying that the provision
                applies to PPE ``required by the standard.'' The resulting proposed
                paragraph (h)(2)(ii) would require employers to ensure that PPE
                required by the standard is not removed in a manner that disperses
                beryllium into the air, which can be accomplished by cleaning the PPE
                prior to removal or carefully removing the PPE so as not to disturb the
                dust.
                 OSHA also proposed to remove the language from paragraph (h)(2)(ii)
                requiring employers to ensure that employees remove PPE in accordance
                with the written exposure control plan to reflect OSHA's simultaneous
                proposal to remove from paragraph (f) the requirement to include
                procedures for doffing, laundering, storing, cleaning, repairing, and
                disposing of beryllium-contaminated PPE in the written exposure control
                plan. However, as discussed in the Summary and Explanation for
                paragraph (f), OSHA has determined that written exposure control plans
                should continue to include procedures for those PPE requirements that
                OSHA did not propose to remove. Accordingly, OSHA is including in
                paragraph (f) a requirement that the written exposure control plan
                include procedures for removal, cleaning, and maintenance of PPE in
                accordance with paragraph (h) (see paragraph (f)(1)(i)(F)). Having
                retained these procedures in the written exposure control plan, OSHA is
                not finalizing its proposal to remove the reference to the written
                exposure control plan from paragraph (h)(2)(ii).
                 For paragraph (h)(3), OSHA also proposed to add language to clarify
                that the requirement that employers ensure that beryllium is not
                removed from PPE by blowing, shaking or any other means that disperses
                beryllium into the air applies to PPE that is ``required by the
                standard.'' OSHA explained in the NPRM that the proposed revision would
                assure employers that, if dust containing only trace amounts of
                beryllium migrates to the PPE of employees who are not reasonably
                expected to have airborne exposure to beryllium above the TWA PEL or
                STEL, the beryllium standards permit that PPE to be removed and cleaned
                in a manner that disperses that dust into the air. The proposed
                revision is thus consistent with the agency's goal of protecting
                employees who already have reasonably expected airborne exposure to
                beryllium at levels of concern from inhaling re-entrained beryllium-
                containing dust.
                 In addition to these proposed revisions to paragraphs (h)(2) and
                (3), OSHA proposed to remove four provisions from paragraphs (h)(2) and
                (3): The requirement to ensure that each employee stores and keeps
                beryllium-contaminated PPE separate from street clothing and that
                storage facilities prevent cross-contamination as specified in the
                written exposure control plan (paragraph (h)(2)(iii)); to ensure that
                beryllium-contaminated PPE is only removed from the workplace by
                employees who are authorized to do so for the purpose of laundering,
                cleaning, maintaining, or disposing of such PPE (paragraph (h)(2)(iv));
                to ensure that PPE removed from the workplace for laundering, cleaning,
                maintenance, or disposal be placed in closed, impermeable bags or
                containers labeled in accordance with the standards' employee
                information and training requirements and the Hazard Communication
                standard (paragraph (h)(2)(v)); and, to inform, in writing, any person
                or business entity who launders, cleans, or repairs PPE required by the
                standards of the potentially harmful effects of exposure to airborne
                beryllium and dermal contact with beryllium, and of the need to handle
                the PPE in accordance with the standards (paragraph (h)(3)(iii)). OSHA
                proposed to remove paragraphs (h)(2)(iii) and (iv), which apply only to
                ``beryllium-contaminated'' PPE, because, as explained above, OSHA has
                defined ``beryllium-contaminated'' as contaminated with dust, fumes,
                mists, or solutions containing beryllium in concentrations greater than
                or equal to 0.1 percent by weight (see 83 FR at 19939), and the data-
                supported operations that produce beryllium exposures of concern in the
                construction and shipyards industries (abrasive blasting and some
                welding in shipyards) will not produce such ``beryllium-contaminated''
                PPE. As for the requirements in paragraphs (h)(2)(v) and (h)(3)(iii),
                which were included to protect individuals who handle beryllium-
                contaminated items after operations involving beryllium have been
                completed (82 FR at 2683), OSHA preliminarily determined in the NPRM
                that it is unnecessary to protect such downstream handlers of PPE in
                this context. Given the operations to which these standards are
                tailored, downstream handlers of PPE could only come in contact with
                dust that contains beryllium in trace concentrations, and OSHA has no
                reason to believe that those individuals would be engaging in tasks
                that could generate airborne exposures at levels of concern. In keeping
                with OSHA's intent to only regulate contact with trace concentrations
                of beryllium when workers are exposed to significant airborne exposure
                to beryllium, OSHA proposed that these two provisions targeting
                downstream handlers of PPE are unnecessary and should be removed.
                 OSHA received only a few comments that specifically addressed the
                proposed changes to paragraphs (h)(2) and (h)(3). NJH stated that
                ``[t]he same protections should be in place for shipyards and
                constructions as in general industry when using, handling, cleaning and
                repairing PPE'' (Document ID 2211, p. 10). Additionally, when
                commenting on OSHA's proposed revisions to paragraph (f), NJH stated
                that, when workers clean and dismantle containments, ``clothes and PPE
                for non-blasting workers are likely to be contaminated with beryllium
                particulate and need to be removed, laundered, stored, cleaned,
                repaired, and disposed of in a manner similar to that outlined in the
                original housekeeping provision'' (Document ID 2211, p. 8). NJH also
                argued that the written exposure control plan should include procedures
                to identify and minimize beryllium exposures to workers involved in
                cleaning and maintaining PPE, and that whenever beryllium exposures are
                generated during a process, PPE used during the process should be
                handled in the manner outlined in the 2017 final rule (Document ID
                2211, p. 9).
                 OSHA does not agree that it is necessary or appropriate for the
                construction and shipyards beryllium standards to contain the exact
                same PPE handling requirements as the general industry beryllium
                standard. As explained above, OSHA finds it appropriate to tailor the
                construction and shipyards beryllium standards to the limited
                operations in those sectors for which OSHA has significant evidence of
                exposures to beryllium at levels of concern (abrasive blasting
                operations and some welding operations in shipyards). Those operations
                do not create a risk of dermal contact with dust, fumes, or mists
                containing greater-than trace concentrations of beryllium, and
                therefore PPE used during such
                [[Page 53945]]
                operations will not accumulate surface dust with greater-than-trace
                concentrations of beryllium. OSHA agrees, however, that it is
                beneficial and necessary to require employers to establish and describe
                procedures for removing, cleaning, and maintaining PPE in the written
                exposure control plan. As discussed in the Summary and Explanation for
                paragraph (f), OSHA has included such a requirement in paragraph
                (f)(1)(i)(F) of the standards, and as noted above, has retained the
                requirement in paragraph (h)(2)(ii) that PPE be removed as specified in
                the written exposure control plan.
                 AFL-CIO commented that the proposed modifications to paragraph
                (h)(2) and (3), when combined with OSHA's proposed changes to paragraph
                (f), ``increase the cumulative exposure risk for workers wearing'' PPE
                and ``the risk of cross-contamination and migration of beryllium
                exposing workers with no respiratory or dermal protection'' (Document
                ID 2210, p. 7). Particularly, AFL-CIO expressed concern that OSHA's
                proposed requirement for written exposure control plans to include
                procedures used to ensure the integrity of each containment used to
                minimize exposures to employees outside of containments used to limit
                bystander exposures (paragraph (f)(1)(i)(E) of the construction
                standard and paragraph (f)(1)(i)(D) of the shipyards standard) ``would
                create a higher concentration of beryllium dust inside the enclosure,''
                while OSHA's proposed revisions to paragraphs (f) and (h)(2) and (3)
                would no longer require employers to use specific procedures to ensure
                that PPE is safely doffed (Document ID 2210, p. 7).
                 AFL-CIO also expressed concern that OSHA's proposed modifications
                to paragraphs (h)(2) and (3) would not sufficiently protect downstream
                handlers of PPE. AFL-CIO stated that, ``by removing provisions to keep
                contaminated PPE separate and labelled, as well as, informing those who
                will come into contact with the PPE that there is potential of
                beryllium exposure,'' OSHA has ``assume[d] without evidence that
                downstream handlers of PPE will not generate airborne exposures,''
                which leaves ``other employers at risk of exposing their employees to a
                carcinogen without their knowledge'' (Document ID 2210, pp. 8, 10).
                AFL-CIO similarly stated at the hearing that ``there's no evidence in
                the record that shows that [downstream] workers will not generate
                airborne exposure and that they should not be informed about the
                hazards of beryllium'' (Document ID 2222, Tr. 118-19).
                 In its post-hearing brief, AFL-CIO further discussed its belief
                that preventing cross-contamination and migration of beryllium-
                containing dust is essential to protecting workers (see Document ID
                2244, pp. 10-15), and cite a 2019 NIOSH publication of a study by Virji
                et al. that stressed the importance of minimizing dust migration to
                reduce the risk of beryllium sensitization (Document ID 2244, pp. 11-12
                (citing Document ID 2239)). AFL-CIO specifically expressed concern that
                ``[a]brasive blasting, a high dust producing task, is likely to result
                in significant dust migration and cross-contamination leading to
                increased beryllium inhalation and dermal exposure if the provisions in
                the [2017] final rule do not remain in place'' (Document ID 2244, p.
                12).
                 Although specifically directed in response to OSHA's proposed
                revisions to paragraph (f), NABTU also expressed its belief that OSHA
                must retain the standards' procedures for minimizing cross-
                contamination and migration of beryllium-containing dust (Document ID
                2240, p. 5). NABTU likewise pointed to the Virji et al. study, stating
                that the study indicated ``that workers at a primary beryllium
                producing facility who were not directly involved in beryllium-related
                operations were still exposed to beryllium in sufficient quantities to
                cause beryllium sensitization,'' and therefore provides ``further
                support to the need to ensure workers handle their clothing and other
                personal protective equipment in ways that minimize the potential that
                either they, their family members or others who may handle the PPE are
                incidentally exposed'' (Document ID 2240, p. 6).
                 OSHA disagrees with AFL-CIO and NABTU. The modifications to
                paragraphs (h)(2) and (3), when combined with the modifications to
                paragraph (f)(1), maintain the necessary protections for workers. As
                explained above, the activities to which the construction and shipyards
                standards are tailored (abrasive blasting operations and limited
                welding operations in shipyards) do not present a risk of dermal
                contact with beryllium in greater-than-trace concentrations. In this
                context, the purpose of the provisions of paragraphs (h)(2) and (3) is
                to prevent workers with significant airborne exposure to beryllium from
                the additional inhalation risk that could result if beryllium-
                containing dust were to spread and become re-entrained in the air.
                 OSHA finds that paragraphs (h)(2) and (3) have been appropriately
                revised to achieve this purpose. The revised paragraph (h)(2)(i)
                requires that employees who have reasonably expected airborne exposure
                to beryllium at levels above the TWA PEL or STEL remove their PPE at
                the end of the work shift or all tasks involving beryllium, and revised
                paragraphs (h)(2)(ii) and (h)(3)(ii) prohibit removing PPE, or
                beryllium from PPE, in a manner that would disperse beryllium into the
                air. These requirements are supplemented by the requirement in
                paragraph (f)(1)(i)(F) for employers to include procedures for
                removing, cleaning, and maintaining PPE in the written exposure control
                plan, and work in concert with additional provisions that minimize the
                potential for beryllium-containing dust to spread in the workplace.
                Specifically, that goal is furthered by the standards' requirements to
                restrict access to work areas at construction worksites where exposures
                to beryllium could reasonably be expected to exceed the TWA PEL or STEL
                (paragraphs (f)(1)(i)(D) and (e)(2)) and establish and limit access to
                regulated areas at shipyard worksites (paragraph (e)); establish
                procedures to ensure the integrity of containments (paragraphs
                (f)(1)(i)(E) in construction and (f)(1)(i)(D) in shipyards); \28\
                establish engineering and work practice controls (paragraph (f)(2));
                and, engage in housekeeping practices that limit the potential for
                airborne exposure to beryllium (paragraph (j)).
                ---------------------------------------------------------------------------
                 \28\ AFL-CIO's concern that these containment integrity
                provisions in paragraph (f) will increase the levels of exposure for
                employees who are required to wear PPE under the beryllium standards
                is mistaken. As discussed in the Summary and Explanation for
                paragraph (f), these new provisions do not require employers to use
                containments, but rather require that, when an employer chooses to
                use a containment (such as a tarp or other structure), the employer
                must include in its written exposure control plan specific
                procedures for ensuring the integrity of the containment. The
                purpose of the paragraphs is to ensure that, when an employer
                chooses to use a containment, it is used in such a way that
                employees outside of the containment are not inadvertently exposed
                to beryllium at levels above the TWA PEL or STEL. Contrary to AFL-
                CIO's suggestion, adding these paragraphs to the standards will
                merely ensure that containments, when used, accomplish their
                intended function.
                ---------------------------------------------------------------------------
                 To further prevent beryllium-containing dust from creating an
                additional inhalation risk to employees who already have the potential
                for airborne exposure above the TWA PEL or STEL, OSHA has decided
                against finalizing its proposal to remove former paragraph (h)(2)(iv)
                from the standards, and has retained a revised version of that
                requirement in the standards. As discussed above, paragraph (h)(2)(iv)
                previously required the employer to
                [[Page 53946]]
                ensure that no employee removes beryllium-contaminated PPE from the
                workplace, except for employees authorized to do so for the purposes of
                laundering, cleaning, maintaining or disposing of beryllium-
                contaminated PPE at an appropriate location or facility away from the
                workplace. OSHA proposed to remove this provision because the data-
                supported operations that produce beryllium exposures of concern in the
                construction and shipyards industries (abrasive blasting and some
                welding in shipyards) will not produce ``beryllium-contaminated'' PPE
                as OSHA has defined that term (see 83 FR at 19939).
                 However, upon consideration of commenters' concerns, and
                particularly those regarding the risk of cumulative airborne exposure
                from contaminated PPE, OSHA has determined that removing this provision
                would insufficiently protect employees who already have airborne
                exposure above the PEL from the additional inhalation risk that could
                occur if they were allowed to remove their PPE from the worksite
                without first properly cleaning it. As OSHA explained in the NPRM and
                previously in this Summary and Explanation, where employees working
                with materials containing trace concentrations of beryllium have
                reasonably expected airborne exposure above the TWA PEL or STEL due to
                their work activity, and would thus be required to use PPE under
                paragraph (h)(1), they will likely be working in highly dusty
                environments that could accumulate large amounts of dust on their PPE
                (84 FR at 53913). OSHA finds that it is appropriate to ensure that such
                workers clean their PPE in accordance with paragraph (h)(3)(ii) prior
                to removing it from the worksite to prevent them from being further
                exposed to airborne beryllium if the dust on their PPE were to be re-
                entrained in their vehicles or homes. Therefore, rather than removing
                paragraph (h)(2)(iv) entirely, OSHA is revising the provision (and
                renumbering it as (h)(2)(iii)) to require the employer to ensure that
                no employee with reasonably expected exposure above the TWA PEL or STEL
                removes PPE required by the beryllium standard from the workplace
                unless it has been cleaned in accordance with paragraph (h)(3)(ii).
                 As explained below, the provisions that OSHA is removing in this
                final rule from paragraphs (h)(2) and (3) (specifically, former
                paragraphs (h)(2)(iii) and (v) and (h)(3)(iii)) do not further the goal
                of preventing workers from encountering beryllium-containing dust that
                could be re-entrained in the air and exacerbate an already-significant
                lung burden. OSHA has therefore determined that the provisions are
                unnecessary.
                 As discussed above, former paragraph (h)(2)(iii) required the
                employer to ensure that each employee stores and keeps beryllium-
                contaminated PPE from street clothing and that storage facilities
                prevent cross-contamination as specified in the written exposure
                control plan required by paragraph (f)(1) of this standard, but PPE
                cannot become ``beryllium-contaminated,'' as OSHA has defined that term
                (see 83 FR at 19939), in the operations to which these standards are
                being tailored. Moreover, OSHA has determined that it is unnecessary to
                retain and revise former paragraphs (h)(2)(iii) so that it applies to
                PPE required by the beryllium standards, as OSHA has done for
                (h)(2)(ii) and (h)(3)(ii), because such a provision would not provide
                protection beyond that already provided by OSHA's sanitation standards
                in construction and shipyards.
                 The sanitation standards for both construction and shipyards
                require employers to provide change rooms under certain circumstances.
                As explained in the Summary and Explanation of paragraph (i), the
                sanitation standard for construction requires employers to provide
                change rooms if a particular standard requires employees to wear
                protective clothing because of the possibility of contamination with
                toxic materials (29 CFR 1926.51(i)). The change rooms must be equipped
                with separate storage facilities for street clothes and protective
                clothing. Similarly, the sanitation standard for shipyards requires
                change rooms when the employer provides protective clothing to prevent
                employee exposure to hazardous or toxic substances (29 CFR 1915.88(g)).
                Furthermore, the employer must provide change rooms that provide
                privacy and storage facilities for street clothes, as well as separate
                storage facilities for protective clothing.
                 Because the beryllium standards require PPE where exposures may
                exceed the TWA PEL or STEL, employers are required to provide change
                rooms under the sanitation standards where employees can store and keep
                PPE separate from street clothing to prevent cross-contamination. OSHA
                finds that, combined with the requirements in paragraph (h)(2)(ii) and
                (h)(3)(ii) regarding the safe removal and cleaning of PPE, the
                requirement in paragraph (f)(1) to include procedures for removing and
                cleaning PPE in the written exposure control plan, and the training
                requirements of paragraph (m), the sanitation standards' requirement
                allowing employees to remove and store their PPE in separate storage
                facilities provide the necessary protections for employees in the
                construction and shipyards context. Accordingly, OSHA is finalizing its
                proposal to revoke former paragraph (h)(2)(iii) in both standards.
                 As for former paragraphs (h)(2)(v) and (h)(3)(iii), which target
                downstream handlers of PPE, OSHA explained in the NPRM that it has no
                reason to believe that such individuals have airborne exposure to
                beryllium at levels above the TWA PEL or STEL. In response to the NPRM,
                no commenters provided the agency with any evidence indicating
                otherwise. Accordingly, OSHA finds that downstream handlers of PPE
                would not have airborne exposure to beryllium at levels of concern that
                could be exacerbated by exposure to any residual dust encountered
                during the PPE removal, laundering, cleaning or repair process. And,
                given that the operations to which OSHA is tailoring the standards only
                involve materials containing trace concentrations of beryllium and/or
                do not pose a significant risk of skin contamination, and that OSHA
                only intended for the standards to prevent contact with materials
                containing trace concentrations of beryllium when there are significant
                airborne exposures at levels of concern, former paragraphs (h)(2)(v)
                and (h)(3)(iii) are not necessary to protect downstream handlers of PPE
                from dermal contact with beryllium.
                 As for AFL-CIO's criticism that the agency has not produced
                evidence to prove that downstream workers are not exposed to airborne
                beryllium at levels above the TWA PEL or STEL, OSHA has no obligation
                or authority to prescribe remedies for problems for which it has no
                evidence of their existence. OSHA did not have evidence of any such
                exposure when it promulgated the standards in 2017, and its inclusion
                of the protections for downstream handlers of PPE in the 2017 final
                rule was due to the agency borrowing provisions from the general
                industry standard without appropriately accounting for only trace
                exposures to beryllium in abrasive blasting and welding operations as
                they pertain to dermal contact.
                 With the exception of former paragraph (h)(2)(iv) (renumbered as
                (h)(2)(iii)), AFL-CIO's and NABTU's comments have not persuaded the
                agency that any of the provisions that it proposed to remove from
                paragraphs (h)(2) and (3) are necessary to protect workers in
                construction and shipyards. Both commenters appear to assume that
                workers in the construction and shipyards industries require protection
                [[Page 53947]]
                against dermal contact with beryllium, but as explained above, the
                operations to which OSHA is tailoring the construction and shipyards
                standards do not pose a risk of dermal contact with beryllium in
                greater-than-trace concentrations, and OSHA never intended to protect
                against such contact unless the individual has exposure to airborne
                beryllium at levels exceeding the TWA PEL or STEL. Furthermore, as
                explained in the Summary and Explanation for paragraph (f), the Virji
                et al. study, to which both AFL-CIO and NABTU cite, likely does not
                reflect current conditions in general industry facilities, and thus
                does not establish that construction employees who enter a general
                industry site today would require protection from dermal contact with
                beryllium in more than trace amounts. OSHA has determined that, given
                the data-supported operations that produce exposures of concern in this
                context, the revised paragraphs (h)(2) and (3), working in concert with
                other relevant provisions in the standards, provide workers with the
                necessary protection against the additional inhalation exposure that
                could be posed by the spread of dust containing trace amounts of
                beryllium.
                 Several other commenters responded that OSHA's proposed changes to
                paragraph (h) do not go far enough, and that none of the beryllium
                standards' ancillary provisions, including the PPE provision, are
                necessary (Document ID 2203, p. 1-2, 11; 2199, p. 3; 2205, p. 2; 2206,
                pp. 10-13; 2209, pp. 1-2; 2241, pp. 3-4). CISC specifically commented
                that, because abrasive blasting employees already wear PPE, OSHA has
                not established that requiring the provision and use of PPE when
                employees have reasonably expected airborne exposure to beryllium above
                the TWA PEL or STEL will significantly reduce the risk of harm
                (Document ID 2203, p. 11; 2241, p. 3). ABMA similarly claimed that
                ``[t]here is no evidence that the pre-existing standards governing
                abrasive blasting are insufficient to protect employees, and there is
                no evidence that exposure to the trace amounts of naturally occurring
                beryllium in abrasive blasting (or welding) has resulted in any
                material impairment of health to employees in all of the many years
                this work has been performed'' (Document ID 2206, p. 11).
                 OSHA did not propose in this rulemaking to remove the standards'
                PPE requirements in their entirety, and in fact, explained in the NPRM
                that it determined in the 2019 final rule that removing paragraph (h)
                in its entirety would not sufficiently protect workers from airborne
                exposure to beryllium (84 FR at 53913). OSHA acknowledged that other
                standards already require some employees engaged in abrasive blasting
                and welding operations in the construction and shipyards sectors to use
                PPE. However, some workers with known exposure to beryllium in
                construction and shipyards, such as abrasive blasting helpers, would
                not be fully protected if OSHA revoked the requirements for PPE in
                their entirety. In addition, other OSHA standards do not provide
                specific PPE removal, cleaning, and maintenance requirements. As
                explained above, the PPE removal and cleaning provisions in these
                standards are necessary to minimize the spread of beryllium-containing
                dust, which, if re-entrained could create additional inhalation
                exposures for workers with reasonably expected airborne exposure to
                beryllium at levels exceeding the TWA PEL or STEL. Commenters have
                provided no new information indicating that such protections are
                unnecessary, and OSHA finds that the PPE provisions that it is
                promulgating in paragraph (h) are necessary and appropriate to protect
                workers in the construction and shipyards industries.
                Former Paragraph (i) Hygiene Areas and Practices
                 In this final rule, OSHA is removing paragraph (i), hygiene areas
                and practices, from the beryllium standards for construction and
                shipyards. OSHA has acknowledged the importance of hygiene practices
                throughout the beryllium rulemaking process (see, e.g., 82 FR at 2684-
                85; 84 FR at 53915). However, it has also acknowledged that the
                sanitation standards in general industry (29 CFR 1910.41), construction
                (29 CFR 1926.51), and shipyards (29 CFR 1915.88) include provisions
                similar to some of those in the beryllium standards (84 FR at 53914).
                In the NPRM, OSHA explained that it was reconsidering the need to
                include additional, beryllium-specific hygiene requirement in the
                construction and shipyards standards, in light of the specific exposure
                sources in these industries; specifically, abrasive blasting operations
                involving beryllium in trace amounts and limited welding operations in
                which dermal exposure is not a concern (84 FR at 53914-15).
                 Based on the evidence in the record and after reviewing the
                comments and hearing testimony pertaining to hygiene areas and
                practices, OSHA has determined that the sanitation standards for
                construction (29 CFR 1926.51) and shipyards (29 CFR 1915.88) provide
                protections comparable to those in paragraph (i) of the beryllium
                standards for construction and shipyards and that additional
                requirements will not materially increase protections in these sectors.
                Accordingly, OSHA is removing paragraph (i) from the beryllium
                standards for construction and shipyards.
                 Paragraph (i) of the 2017 final rule established requirements for
                hygiene areas and practices in general industry (29 CFR 1910.1024),
                construction (29 CFR 1926.1024), and shipyards (29 CFR 1915.1024). As
                promulgated in 2017, paragraph (i) required employers in all three
                industries to: (1) Provide readily accessible washing facilities to
                remove beryllium from the hands, face, and neck (paragraph (i)(1)(i));
                (2) ensure that employees who have dermal contact with beryllium wash
                any exposed skin (paragraph (i)(1)(ii)); (3) provide change rooms if
                employees are required to use personal protective clothing and are
                required to remove their personal clothing (paragraph (i)(2)); (4)
                ensure that employees take certain steps to minimize exposure in eating
                and drinking areas (paragraph (i)(3)); and (5) ensure that employees do
                not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in areas
                where there is a reasonable expectation of exposure above the TWA PEL
                or STEL (paragraph (i)(4)).
                 After publishing the 2017 final rule, OSHA clarified in a direct
                final rule (DFR) for general industry that the agency only intended to
                regulate contact with trace beryllium to the extent that it causes
                airborne exposures of concern (83 FR at 19938). Unlike in general
                industry, where processes involving exposure to beryllium are varied
                and employees are exposed to a variety of materials that can contain
                high concentrations of beryllium, exposures in the construction and
                shipyards industries are primarily limited to abrasive blasting
                operations in construction and shipyards and a small number of welding
                operations in shipyards (Document ID 2042, FEA Chapter III, pp. 103-11
                and Table III-8e) (see the Summary and Explanation for paragraph (f)(1)
                for a discussion of the potential for additional sources of exposure in
                these sectors). While the extremely high airborne exposures during
                abrasive blasting operations can expose workers to beryllium in excess
                of the PEL, the blasting materials contain only trace amounts of
                beryllium (Document ID 2042, FEA Chapter IV, p. 612). Moreover, the
                record before the agency contains evidence of beryllium exposure during
                only limited welding operations in shipyards (Document ID 2042, FEA
                Chapter III, Table III-8e) and as discussed previously, OSHA has
                [[Page 53948]]
                determined that for these limited welding operations the exposure of
                concern is exposure to airborne beryllium and not dermal contact.
                 In the NPRM, OSHA preliminarily determined that, based on the trace
                beryllium content of blasting materials and the available information
                on welding operations, the construction and shipyards sectors do not
                have operations where skin or surface contamination in the absence of
                significant airborne exposures is an exposure source of concern (84 FR
                at 53906, 53914-15). In light of the existing OSHA standards providing
                many of the same protections as the beryllium standards, the limited
                operations where beryllium exposure may occur in construction and
                shipyards, and the trace quantities of beryllium present in
                construction and shipyard operations, OSHA preliminarily determined
                that the requirements for hygiene areas and practices in the 2017
                beryllium standards for construction and shipyards may be unnecessary
                to protect employees in these industries and proposed to remove all
                provisions of paragraph (i) from the construction and shipyard
                standards (84 FR 53915-16). Accordingly, the agency proposed to remove
                paragraph (i) from the construction and shipyard standards (84 FR at
                53916). Detailed explanations of each provision and OSHA's reasoning
                for removing them are presented below, along with discussion of and
                response to comments received on the proposal.
                 Paragraph (i)(1) of both the construction and shipyards standards
                required that, for each employee required to use PPE by the standard,
                employers provide readily accessible washing facilities for use in
                removing beryllium from the hands, face, and neck (paragraph
                (i)(1)(i)), and ensure employees who have dermal contact with beryllium
                wash any exposed skin at the end of the activity, process, or work
                shift and prior to eating, drinking, smoking, chewing tobacco or gum,
                applying cosmetics, or using the toilet (paragraph (i)(1)(ii)). OSHA
                proposed to remove these provisions because existing standards already
                require the use of washing facilities for workers in construction and
                shipyards.
                 The sanitation standard for construction (29 CFR 1926.51(f))
                requires employers to provide adequate washing facilities maintained in
                a sanitary condition for employees engaged in operations where
                contaminants may be harmful to the employees. It also requires that
                these washing facilities must be in proximity to the worksite and must
                be so equipped as to enable employees to remove such substances.
                Lavatories are also required at all places of employment and must be
                equipped with hot and cold running water, or tepid running water. Hand
                soap or similar cleansing agents must be provided along with hand
                towels, air blowers, or clean continuous cloth toweling, convenient to
                the lavatories. The sanitation standard for shipyards (29 CFR
                1915.88(e)) similarly requires employers to provide handwashing
                facilities at or adjacent to each toilet facility. The criteria for
                these handwashing facilities are similar to the construction industry
                in that they must be equipped with hot and cold running water or tepid
                running water, soap, or skin cleansing agents capable of disinfection
                or neutralizing the contaminant, and drying materials and methods. This
                standard further requires the employer to inform each employee engaged
                in operations in which hazardous or toxic substances can be ingested or
                absorbed about the need for removing surface contaminants from their
                skin's surface by thoroughly washing their hands and face at the end of
                the work shift and prior to eating, drinking, or smoking (see 29 CFR
                1915.88(e)(3)). Even though the sanitation standards do not
                specifically mention beryllium, the use of the terms harmful substances
                in the construction sanitation standard and hazardous or toxic
                substance in the shipyard sanitation standard encompass beryllium
                exposure where airborne exposure exceeds, or can reasonably be expected
                to exceed, the TWA PEL or STEL.
                 With respect to abrasive blasting, the sanitation standards'
                washing facilities requirements are triggered by the use of blasting
                media; either due to contaminants in the blasting media (which may
                include beryllium, lead, hexavalent chromium, cadmium, and arsenic) or
                contamination from the substrate or coatings on the substrate.
                Similarly, in the limited welding operations involving beryllium
                exposure, workers will likely be exposed to other hazardous chemicals
                (including hexavalent chromium, lead, and cadmium) (see https://www.osha.gov/SLTC/weldingcuttingbrazing/chemicals.html), triggering the
                requirements of the sanitation standards. Accordingly, the sanitation
                standards provide comparable protections to the washing facilities
                requirements that OSHA is proposing to remove from both the
                construction and shipyard standards (paragraphs (i)(1)(i) and (ii)).
                 OSHA also proposed to remove paragraph (i)(2), which required
                employers to provide change rooms where employees are required to
                remove their personal clothing in order to don PPE (paragraph (i)(2)),
                because the sanitation standards already provide comparable protections
                (84 FR at 53915). The sanitation standard for construction (29 CFR
                1926.51(i)) requires employers to provide change rooms if a particular
                standard requires employees to wear protective clothing because of the
                possibility of contamination with toxic materials. The change rooms
                must be equipped with storage facilities for street clothes and
                separate storage facilities for the protective clothing must be
                provided. Similarly, the sanitation standard for shipyards (29 CFR
                1915.88(g)) requires change rooms when the employer provides protective
                clothing to prevent employee exposure to hazardous or toxic substances.
                Furthermore, the employer must provide change rooms that provide
                privacy and storage facilities for street clothes, as well as separate
                storage facilities for protective clothing. Because the beryllium
                standards require PPE where exposures may exceed the TWA PEL or STEL,
                employers are required to provide change rooms under the sanitation
                standards, just as they would have been required by paragraph (i)(2) of
                the beryllium standards.
                 OSHA further proposed to remove paragraph (i)(3) from the
                construction and shipyards standards, which established requirements
                for eating and drinking areas. Paragraph (i)(3)(i) required that
                surfaces in eating and drinking areas be kept as free as practicable of
                beryllium and paragraph (i)(3)(ii) required that employees remove or
                clean contaminated clothing prior to entering these areas. OSHA
                proposed to remove these provisions for two reasons. First, provisions
                in the sanitation standards for construction (29 CFR 1926.51(g)) and
                shipyards (29 CFR 1915.88(h)) already require employers to ensure that
                food, beverages, and tobacco products are not consumed or stored in any
                area where employees may be exposed to hazardous or toxic materials.
                Second, these provisions relate to minimizing dermal contact.\29\ As
                explained in the Summary and Explanation for paragraph (h), OSHA
                [[Page 53949]]
                intends that provisions aimed at addressing dermal contact should only
                apply to materials containing trace amounts of beryllium where there is
                also the potential for significant airborne exposure. OSHA
                preliminarily determined that the processes in construction and
                shipyards creating exposure to beryllium are either processes that
                involve materials containing less than 0.1 percent beryllium by weight
                or processes that do not produce surface or skin contamination (84 FR
                at 53916).
                ---------------------------------------------------------------------------
                 \29\ In the 2019 construction and shipyards final rule, in which
                OSHA declined to revoke all of the ancillary provisions of these
                standards, OSHA stated that there was not complete overlap between
                the sanitation standards and the eating and drinking area
                requirements of paragraph (i)(3) (84 FR at 51395). That rule,
                however, did not address whether additional beryllium-specific
                requirements were necessary in light of the trace exposures in these
                contexts.
                ---------------------------------------------------------------------------
                 OSHA further explained that other parts of the beryllium standard
                will reduce the potential for airborne beryllium in eating and drinking
                areas (84 FR at 53916). Specifically, when employees are cleaning up
                dust resulting from operations that cause, or can reasonably be
                expected to cause, airborne exposures over the TWA PEL or STEL, the
                employer must ensure the use of methods that minimize the likelihood
                and level of airborne exposure (see paragraph (j)). And under proposed
                paragraph (h)(2)(ii), employers must ensure that PPE required by the
                standard is not removed in a manner that disperses beryllium into the
                air. Given that the construction and shipyard operations known to
                involve beryllium exposure involve only trace amounts of beryllium (or,
                in the case of welding, do not pose a dermal contact risk), and that
                other provisions of the beryllium standard such as engineering controls
                and housekeeping requirements serve to minimize airborne exposures,
                OSHA preliminarily determined that existing standards adequately
                protect employees in eating and drinking areas (84 FR at 53916).
                 OSHA also proposed to remove the reference in paragraph (i)(3)(iii)
                which required that eating and drinking facilities provided by the
                employer must be in accordance with the sanitation standards. OSHA does
                not believe it is necessary to maintain this reference, as this would
                be the only requirement remaining in paragraph (i) and employers are
                required to comply with the sanitation standards regardless.
                 Finally, OSHA proposed to remove paragraph (i)(4), which required
                the employer to ensure that no employees eat, drink, smoke, chew
                tobacco or gum, or apply cosmetics in work areas where there is a
                reasonable expectation of exposure above the TWA PEL or STEL. The
                sanitation standards prohibit consuming food or beverages in areas
                exposed to toxic material and therefore provides the appropriate
                protections for areas where exposures are above the PEL. OSHA
                preliminarily determined that the sanitation standards are
                substantially similar to former paragraph (i)(4) and provide
                appropriate protections for areas where exposures are above the PEL (84
                FR at 53916).
                 In the 2019 NPRM, OSHA requested comment on the proposed removal of
                paragraph (i), especially comments and data on the use of wash
                facilities and change rooms in construction and shipyards for
                operations that would be covered by the beryllium standards (84 FR at
                53916).
                 Several commenters disagreed with OSHA that the hygiene provisions
                under paragraph (i) should be rescinded. AFL-CIO commented that
                removing paragraph (i) will increase workers' risk of cumulative
                beryllium exposure and could lead to migration of beryllium to other
                areas, resulting in inhalation exposure to other workers (Document ID
                2210, p. 8). They argued that the sanitation standards leave gaps in
                coverage, in light of ``the significant risk of impairment to worker
                health at low exposure limits and the carcinogenicity of beryllium,''
                and that other provisions of the beryllium standard addressing airborne
                exposure are insufficient to justify removing the hygiene provisions
                (Document ID 2210, p. 8). In post-hearing comments, AFL-CIO reiterated
                their position and stated that the 2017 final rule found paragraph (i)
                ``prevents additional airborne and dermal exposure to beryllium,
                accidental ingestion of beryllium, spread of beryllium inside and
                outside the workplace and reduces significant risk of beryllium
                sensitization and CBD'' (Document ID 2239, p. 2).
                 AFL-CIO did not identify which protections in paragraph (i) are
                left unaddressed by the sanitation standards. With respect to increases
                in cumulative exposure or migration of beryllium resulting in increased
                airborne exposure, OSHA has explained that the sanitation standards for
                construction and shipyards contain comparable requirements for change
                rooms (29 CFR 1926.51(i); 29 CFR 1915.88(g)) and washing facilities (29
                CFR 1926.51(f); 29 CFR 1915.88(e)) and prohibit contamination in eating
                and drinking areas (29 CFR 1926.51(g); 29 CFR 1915.88(h)). At the same
                time, existing provisions of the beryllium standards further reduce the
                potential for airborne exposure by ensuring beryllium-containing dust
                is cleaned up by methods that minimize the likelihood and level of such
                exposure (paragraph (j)) and that PPE is removed and cleaned in a
                manner that does not disperse beryllium into the air (paragraphs (h)(2)
                and (3)). Regarding the need for provisions to protect against dermal
                contact, OSHA has explained that it does not intend such provisions to
                apply where, as here, exposure involves materials containing only trace
                amounts of beryllium (see the Summary and Explanation for paragraph
                (h)). Ultimately, OSHA disagrees with the AFL-CIO's broad and
                unelaborated assertion that these protections are inadequate.
                 NABTU, resubmitting comments previously entered in the docket,
                argued that the hygiene provisions ``provide protections not only for
                abrasive blasting workers, but for all construction workers who may be
                exposed to beryllium,'' including workers who perform maintenance,
                repair, renovation, or demolition of worksites that contain beryllium
                (Document ID 2202, 2017 comment, p. 7; see also Document ID 2202, 2015
                comment, p. 9). According to NABTU, providing washing and clean-up
                facilities to beryllium-exposed workers benefits all workers at the
                site, ``especially those who don't perform beryllium-exposing tasks,
                who may not be aware of the hazards of beryllium'' (Document ID 2202,
                2017 comment, p. 7). At the public hearing, when asked which hygiene
                provisions they viewed as important for abrasive blasting operations in
                construction, NABTU's representative identified ``handwashing
                facilities . . . [and] the ability to change out of clothing that's
                contaminated with the dust'' (Document ID 2222, Tr. 105).
                 In their post-hearing brief, NABTU again emphasized their position
                that OSHA should retain provisions related to dermal contact in
                construction and argued that the sanitation standard for construction
                lacks ``the level of specificity necessary to ensure construction
                workers adequate protection'' (Document ID 2240, p. 8). Specifically,
                although paragraph (f) of the sanitation standard requires construction
                employers to provide washing facilities, NABTU notes that it does not
                specify that workers must use these facilities following dermal contact
                with beryllium and before ``eating drinking, smoking, chewing tobacco
                or gum, applying cosmetics, or using the toilet'' (Document ID 2240, p.
                9). And although paragraph (g) prohibits eating or drinking in ``any
                area exposed to a toxic material,'' NABTU asserts that it ``does not
                address the range of activities covered by the beryllium standard''
                (Document ID 2240, p. 9). Finally, they state that the sanitation
                standard does not require employees to remove surface beryllium from
                their clothing or PPE before taking the equipment into an eating or
                drinking area (Document ID 2240, p. 9).
                [[Page 53950]]
                 OSHA agrees with NABTU that washing and clean-up facilities benefit
                all workers at a worksite and that all workers with beryllium exposure
                should be protected. However, the agency has determined that a
                beryllium-specific requirement is not necessary to provide these
                protections in the construction context. OSHA has determined that the
                sanitation standard for construction provides the same protections as
                the beryllium standard with respect to washing facilities (29 CFR
                1926.51(f)) and change rooms (29 CFR 1926.51(i)).
                 OSHA disagrees with NABTU that the sanitation standard for
                construction lacks sufficient specificity to protect workers in the
                construction industry. First, with respect to the previous requirement
                in paragraph (i)(1)(ii) that employees with dermal contact wash exposed
                skin prior to ``eating, drinking, smoking, chewing tobacco or gum,
                applying cosmetics, or using the toilet,'' this requirement was
                triggered on and specifically aimed at addressing dermal contact (82 FR
                at 2684).\30\ OSHA has addressed commenters' concerns regarding dermal
                contact previously in this preamble (see the Summary and Explanation
                for paragraph (f)), and simply notes again its determination that this
                is not an exposure source of concern in the construction operations
                known to involve beryllium exposure.
                ---------------------------------------------------------------------------
                 \30\ In the general industry DFR, the agency revised the
                definition of ``dermal contact with beryllium'' to apply only to
                skin exposure to beryllium ``in concentrations greater than or equal
                to 0.1 percent by weight'' (83 FR at 19940). OSHA notes that under
                this revised definition of dermal contact, the requirement in
                paragraph (i)(1)(ii) would never be triggered in the context of
                abrasive blasting operations in construction and shipyards.
                ---------------------------------------------------------------------------
                 The same rationale applies to NABTU's concerns regarding the list
                of prohibited activities as they appear in paragraph (i)(4). OSHA
                initially included these provisions due to the risk of ``beryllium
                contaminating the food, drink, tobacco, gum, or cosmetics'' (82 FR at
                2688). Having received no comments related to this provision when OSHA
                original proposed it for the general industry standard, OSHA extended
                ``substantively identical'' requirements to the construction and
                shipyards standards in the 2017 final rule (82 FR at 2688). In light of
                OSHA's determination in this final rule that exposures in the
                construction and shipyards sectors are limited to trace amounts of
                beryllium, the agency finds that this is no longer a concern in these
                sectors. Next, after considering NABTU's assertion that the sanitation
                standard does not require employees to remove surface beryllium from
                their clothing or PPE before taking the equipment into an eating or
                drinking area, OSHA has reviewed the existing requirements of 29 CFR
                1926.51 and determined that this is not the case. If an area contains
                PPE covered with surface beryllium, such that employees may be exposed
                through re-entrainment of the beryllium-containing dust, 29 CFR
                1926.51(g) by its terms prohibits employees from consuming or storing
                food, beverages, or tobacco products in that area.
                 NJH commented that, although there is ``likely some overlap''
                between the beryllium and sanitation standards, it is important to
                ensure that ``special protections'' are in place to protect workers
                from beryllium exposures (Document ID 2211, p. 10). NJH specifically
                noted that contaminated change rooms may potentially exposure workers
                not otherwise working with or exposed to beryllium (Document ID 2211,
                p. 10). OSHA notes that paragraph (i)(2) in each of the beryllium
                standards required employers to provide change rooms in accordance with
                the beryllium standard and the relevant sanitation standard, when an
                employee is required to change from street clothes to don PPE (29 CFR
                1926.1124(i)(2); 29 CFR 1915.1024(i)(2)). Paragraph (h)(2)(iii) of the
                beryllium standards, in turn, required employers to ensure that
                beryllium-contaminated PPE is kept separate from street clothes and
                that storage facilities prevent cross-contamination (29 CFR
                1926.1124(h)(2)(iii); 29 CFR 1915.1024(h)(2)(iii)). However, the
                sanitation standards each also require that change rooms contain
                separate storage facilities for street clothes and PPE to prevent
                cross-contamination (29 CFR 1926.51(i); 29 CFR 1915.88(g)). OSHA finds
                that, combined with the requirements in paragraph (h)(2) and (3) of the
                beryllium standards regarding the safe removal and cleaning of PPE, the
                sanitation standards for construction and shipyards protect against
                contamination of required change rooms to the same extent as paragraph
                (i).
                 Finally, one commenter argued that paragraph (i) must be included
                for ``implementation and consistency with other comprehensive health
                standards'' (Document ID 2197). However, the commenter did not identify
                how relying on the sanitation standards would result in implementation
                issues. With respect to consistency, although it is true that some
                health standards contain substance-specific hygiene requirements, the
                breadth and content of the requirements differ by standard. For
                example, the hygiene requirements of the methylene chloride standard
                (29 CFR 1926.1152) address only the provision of washing facilities,
                while the requirements in other standards, such as the cadmium standard
                (29 CFR 1926.1127), contain numerous, more detailed requirements. Other
                health standards, such as the standards for vinyl chloride (29 CFR
                1926.1117), benzene (29 CFR 1926.1128), and respirable crystalline
                silica (29 CFR 1926.1153), contain no substance-specific hygiene
                requirements at all and rely solely on the general sanitation standard.
                Thus, relying on the sanitation standards rather than beryllium-
                specific hygiene requirements will not create inconsistency among
                OSHA's comprehensive health standards.
                 OSHA has reviewed these comments and the record as a whole and has
                decided to follow through with the proposed removal of paragraph (i).
                In light of existing OSHA sanitation standards which provide
                protections comparable to those in paragraph (i) of the beryllium
                standards for construction and shipyards and the trace quantities of
                beryllium present in these industries (or, in the case of welding
                operations, the lack of skin or surface contamination), OSHA has
                determined that additional, beryllium-specific hygiene requirements
                will not materially increase protections for workers in these
                industries. Accordingly, the agency is removing former paragraph (i)
                from the construction and shipyard standards. By doing so, OSHA intends
                to tailor the beryllium standards for construction and shipyards to
                ensure they are no more complicated or onerous than necessary to
                appropriately protect workers, thereby improving compliance.
                Paragraph (j) Housekeeping
                 In this final rule, paragraph (j) of the construction and shipyards
                standards mandates several housekeeping requirements aimed at reducing
                workers' airborne exposure to beryllium. Paragraph (j)(1) requires
                employers to use cleaning methods that minimize the likelihood and
                level of airborne exposure to beryllium when cleaning up dust resulting
                from operations that cause, or can reasonably be expected to cause,
                airborne exposure above the TWA PEL or STEL. Paragraph (j)(2) prohibits
                dry sweeping or brushing for cleaning up dust from operations that
                cause, or can reasonably be expected to cause, airborne exposure above
                the TWA PEL or STEL unless other methods that minimize the likelihood
                and level of airborne exposure are not safe or effective. Paragraph
                (j)(3) prohibits the use of compressed air for cleaning if its use
                [[Page 53951]]
                causes, or can reasonably be expected to cause, airborne exposure above
                the TWA PEL or STEL. Paragraph (j)(4) requires respirator use and
                personal protective clothing and equipment where employees use dry
                sweeping, brushing, or compressed air to clean. Finally, paragraph
                (j)(5) requires cleaning equipment to be handled and maintained in a
                manner that minimizes the likelihood and level of airborne exposure and
                re-entrainment of airborne beryllium in the workplace.
                 This final rule includes several changes from paragraph (j) as
                promulgated in the 2017 final rule. As OSHA explained in the proposal,
                the agency acknowledged in the 2017 final rule that different
                approaches may be warranted for the housekeeping provisions for
                construction and shipyards than for general industry due to the nature
                of the materials and identified work processes with beryllium exposure
                in construction and shipyards (82 FR at 2690). OSHA recognized that
                beryllium exposure in these industries is limited primarily to abrasive
                blasting in construction and shipyards and a small number of welding
                operations in shipyards (Document ID 2042, FEA Chapter III, pp. 103-11
                and Table III-8e). While the extremely high airborne dust exposures
                during abrasive blasting operations can expose workers to beryllium in
                excess of the PEL, slag-based abrasive media contains only trace
                amounts of beryllium (Document ID 2042, FEA Chapter IV, p. 612).
                Moreover, the record before the agency contains evidence of beryllium
                exposure during only limited welding operations in shipyards (Document
                ID 2042, FEA Chapter III, Table III-8e). Nonetheless, in the 2017 final
                rule, OSHA applied most of the same requirements to these industries as
                to general industry,\31\ where the operations with beryllium exposure
                are significantly more varied and employees are exposed to materials
                with significantly higher beryllium content.
                ---------------------------------------------------------------------------
                 \31\ Due to the transient nature of the work processes in
                construction and shipyards and the fact that most of the work occurs
                outside, OSHA decided not to require employers in these industries
                to maintain all surfaces as free as practicable of beryllium, as it
                had done in general industry. Rather, the agency required employers
                in these industries to follow their written exposure control plan
                when cleaning beryllium-contaminated areas (82 FR at 2690).
                ---------------------------------------------------------------------------
                 Since publication of the 2017 final rule, OSHA has undertaken
                several additional rulemaking efforts affecting the beryllium standards
                for construction and shipyards. OSHA clarified in the beryllium general
                industry DFR that the agency only intended to regulate contact with
                trace beryllium to the extent that it caused airborne exposures of
                concern. OSHA explained that the agency never intended for provisions
                aimed primarily at protecting workers from the effects of dermal
                contact to apply in the case of materials containing only trace amounts
                of beryllium (83 FR at 19938).
                 OSHA also published its 2017 proposal to revoke the ancillary
                provisions of the construction and shipyards beryllium standards in
                light of overlap with existing OSHA standards applicable to these
                sectors (82 FR 29182). With respect to the housekeeping provisions of
                paragraph (j), OSHA identified existing standards that at least
                partially duplicated the requirements of the beryllium standards.
                Specifically, OSHA cited the construction ventilation standard, which
                requires that dust not be allowed to accumulate outside abrasive
                blasting enclosures and that spills be cleaned up promptly (29 CFR
                1926.57(f)(7)). OSHA also identified certain provisions of OSHA's
                general ventilation standard for abrasive blasting (29 CFR 1910.94(a)),
                which apply to abrasive blasters in shipyards, and require that dust
                must not be permitted to accumulate on the floor or on ledges outside
                of an abrasive-blasting enclosure, and dust spills must be cleaned up
                promptly. (29 CFR 1910.94(a)(7)). Although OSHA ultimately determined
                that existing standards did not duplicate all of the requirements of
                paragraph (j), the agency acknowledged that certain revisions may be
                appropriate to account for partial overlap in these standards (84 FR at
                51378).
                 In the 2019 NPRM, OSHA announced that it was reconsidering its
                approach to the housekeeping provisions in the construction and
                shipyards standards based primarily on two rationales. First, OSHA
                preliminarily determined that skin or surface contamination in the
                absence of significant airborne exposures is not an exposure source of
                concern in the operations with known beryllium exposure in the
                construction and shipyards sectors; that is, abrasive blasting with
                material containing trace quantities of beryllium and limited welding
                operations in shipyards. Second, OSHA preliminary determined that
                partial overlap between paragraph (j) and existing OSHA standards made
                certain revisions to these requirements appropriate (84 FR at 53916-
                17). Accordingly, OSHA proposed a number of changes to paragraph (j) in
                both standards.
                 First, OSHA proposed to remove paragraph (j)(1), which required
                employers to follow the written exposure control plan in paragraph (f)
                when cleaning beryllium-contaminated areas and to ensure that spills
                and emergency releases of beryllium are cleaned up promptly and in
                accordance with the written exposure control plan (84 FR at 53917).
                OSHA explained that routine general housekeeping and housekeeping
                related to spills are adequately covered by the existing ventilation
                standard for construction (29 CFR 1926.57(f)(7)) and OSHA's general
                ventilation standard (29 CFR 1910.94(a)) applicable to shipyards (84 FR
                at 53917). OSHA also explained that because the housekeeping provisions
                are triggered by only one operation (abrasive blasting) using materials
                with trace amounts of beryllium and the main objective of these
                provisions is to minimize airborne exposure, a unique written plan for
                how to clean is unnecessary in this context. OSHA noted that this is in
                contrast to general industry, where there is the concern for protecting
                workers from both airborne exposures and dermal contact over a variety
                of beryllium-containing materials and processes and where employers may
                need to have more complicated or unique cleaning procedures to
                adequately protect workers. Finally, with respect to emergency releases
                of beryllium, OSHA elsewhere in the proposal preliminarily determined
                that the operations with beryllium exposure in the construction and
                shipyards sectors do not have emergencies in which exposures differ
                from the normal conditions of works (see 84 FR at 53909), rendering
                housekeeping procedures specific to emergency releases unnecessary.
                 OSHA also proposed revising paragraph (j)(2), which addressed the
                use of cleaning methods that minimize the likelihood and level of
                airborne exposure, the use of dry sweeping, brushing and compressed air
                for cleaning, the use of respiratory protection and personal protective
                equipment when employing certain types of cleaning methods, and
                handling and maintaining cleaning equipment (84 FR at 53917). The first
                proposed revision relates to paragraph (j)(2)(i), renumbered as (j)(1),
                which required the use of HEPA-filtered vacuuming or other methods that
                minimize the likelihood and level of airborne exposure when cleaning in
                beryllium-contaminated areas. The second proposed revision relates to
                paragraph (j)(2)(ii), renumbered as (j)(2), which prohibited dry
                sweeping or brushing for cleaning in beryllium-contaminated areas
                unless HEPA-filtered vacuuming or other methods that minimize the
                [[Page 53952]]
                likelihood and level of airborne exposure are not safe or effective.
                 In both paragraphs, OSHA proposed replacing the phrase ``cleaning
                in beryllium-contaminated area'' with ``cleaning up dust resulting from
                operations that cause, or can reasonably be expected to cause, airborne
                exposure above the TWA PEL or STEL'' (84 FR at 53917). In the 2018 DFR,
                OSHA clarified the general industry beryllium standard by defining
                ``contaminated with beryllium'' and ``beryllium-contaminated'' as
                contaminated with dust, fumes, mists, or solutions containing beryllium
                in concentrations greater than or equal to 0.1 percent by weight; a
                condition not applicable to abrasive blasting operations in
                construction and shipyards (84 FR at 53917; 83 FR at 19939-40). Because
                the agency preliminarily determined that there are no operations
                covered by the construction or shipyard beryllium standards that would
                create such a beryllium-contaminated surface, the agency proposed to
                revise these portions of renumbered paragraphs (j)(1) and (2). OSHA
                explained that the agency intends these provisions to apply where
                workers are either working in regulated areas in shipyards or in areas
                with exposures above the TWA PEL or STEL in construction. As such, OSHA
                preliminarily determined that the presence of dust produced by
                operations that cause, or can reasonably be expected to cause, airborne
                exposure above the TWA PEL or STEL is a more appropriate trigger for
                these requirements (84 FR at 53917).
                 OSHA also proposed to remove the references to ``HEPA-filtered
                vacuuming'' in renumbered paragraphs (j)(1) and (2) and instead to
                refer simply to methods that minimize the likelihood and level of
                airborne exposure. OSHA explained that in abrasive blasting operations,
                where large amounts of dust are generated, the use of such vacuums may
                be problematic due to filter overload and clogging which may cause
                additional exposures (84 FR at 53917). Because the use of HEPA-filtered
                vacuums may not be appropriate in abrasive blasting operations, OSHA
                proposed to revise paragraph (j) of both standards to remove the
                references to such vacuums.
                 OSHA next proposed to revise paragraph (j)(2)(iii), renumbered as
                paragraph (j)(3), which prohibited the use of compressed air for
                cleaning in beryllium-contaminated areas unless the compressed air is
                used in conjunction with a ventilation system designed to capture the
                particulates made airborne by the use of compressed air (84 FR at
                53917). OSHA again proposed to remove the reference to ``beryllium-
                contaminated areas'' for reasons already discussed. OSHA also proposed
                to prohibit the use of compressed air for cleaning where its use
                causes, or can reasonably be expected to cause, airborne exposure above
                the TWA PEL or STEL, without reference to the use of ventilation. OSHA
                explained that in the 2017 final rule, the agency determined that the
                use of compressed air might occasionally be necessary in general
                industry (84 FR at 53918; see 82 FR at 2693). Similarly, for
                construction and shipyards, OSHA intended at the time to prohibit the
                use of compressed air during cleaning of beryllium contaminated areas
                or materials designated for recycling or disposal unless used in
                conjunction with a ventilation system (84 FR at 53918). In the
                proposal, OSHA stated that the agency was now reconsidering the
                practicality of using ventilation with compressed air when cleaning
                areas with copious amounts of dust produced during abrasive blasting at
                construction and shipyard sites. Instead, OSHA proposed to limit the
                use of compressed air to circumstances in which there is a limited
                quantity of dust, which, if re-entrained, would not result in exposures
                above the TWA PEL or STEL (84 FR at 53918).
                 OSHA next proposed revising paragraph (j)(2)(iv), renumbered as
                paragraph (j)(4), which addressed respirator use and personal
                protective clothing and equipment where employees use dry sweeping,
                brushing, or compressed air to clean in beryllium-contaminated areas.
                OSHA again proposed to remove the reference to ``beryllium-contaminated
                areas'' for reasons already discussed and to instead simply require the
                use of respiratory protection and PPE ``in accordance with paragraphs
                (g) and (h)'' when dry sweeping, brushing, or compressed air is used
                (84 FR at 53918).
                 Finally, OSHA proposed removing the disposal provision in paragraph
                (j)(3), which required that, when transferring beryllium-containing
                materials to another party for use or disposal, employers must provide
                the recipient a copy of the warning label required by paragraph (m) (84
                FR at 53918). Separately in the proposal, OSHA proposed removing the
                labeling requirement in paragraph (m) altogether. OSHA explained that
                all beryllium-containing materials in the shipyard and construction
                industries contain or produce only trace amounts of beryllium.
                Accordingly, OSHA explained, this revision is consistent with OSHA's
                intention, explained in the 2018 DFR, that provisions aimed at
                protecting workers from the effects of dermal contact should not apply
                to materials containing only trace amounts of beryllium, such as
                abrasive blasting media, unless those workers are also exposed to
                airborne beryllium at or above the action level (84 FR at 53918; see 83
                FR at 19940). OSHA further explained that the revision aligns with the
                housekeeping requirements of the general industry beryllium standard
                (as modified by the DFR), which does not require labeling for materials
                that contain only trace quantities of beryllium and are designated for
                disposal, recycling, or reuse (84 FR at 53918). OSHA emphasized that
                these materials must still be labeled according to the Hazard
                Communication standard (29 CFR 1910.1200) and, if appropriate, the
                hazards of beryllium must be addressed on the label and Safety Data
                Sheet (SDS) (84 FR at 53918).\32\ For additional discussion on labeling
                requirements, see the Summary and Explanation for paragraph (m).
                ---------------------------------------------------------------------------
                 \32\ OSHA also proposed some minor, non-substantive changes to
                paragraph (j), including renumbering existing paragraph (j)(2)(v) as
                paragraph (j)(5) and removing the heading for ``Cleaning Methods''
                to refer to these requirements only as ``Housekeeping'' (84 FR at
                53918, FN 8). OSHA received no comments on these changes and is
                finalizing them as proposed.
                ---------------------------------------------------------------------------
                 Some commenters disagreed with the proposed changes to paragraph
                (j) in both comments submitted to the record and in testimony at the
                public hearing. Many reiterated in their comments that they believe
                that workers in the construction and shipyard industries are exposed
                during activities other than abrasive blasting and welding, some of
                which may involve beryllium in greater-than-trace amounts. These
                commenters included AFL-CIO (Document ID 2210, p. 9), NJH (Document ID
                2211, p. 11), NABTU (Document ID 2240, p. 9), ACOEM (Document ID 2213,
                p. 3), and certain members of Congress (Document ID 2208, p. 6). As in
                other areas of their comments, these commenters identified additional
                operations that they believe involve beryllium exposure, primarily the
                dressing of non-sparking tools and construction, maintenance,
                decommissioning, and demolition work at beryllium-processing
                facilities. With respect to the requirements of paragraph (j), some of
                these commenters argued that the potential for additional exposures in
                these operations counsel against removing any housekeeping
                requirements--but particularly those aimed at addressing dermal contact
                with beryllium--to tailor these standards to abrasive blasting and
                welding operations.
                [[Page 53953]]
                 OSHA has addressed commenters' concerns regarding additional
                sources of exposure previously in this preamble in the Summary and
                Explanation for paragraph (f) and refers readers to that discussion. To
                summarize, although OSHA acknowledges the potential for exposures
                beyond abrasive blasting and welding operations, the record continues
                to lack sufficient data for the agency to characterize the nature,
                locations, or extent of beryllium exposure in application groups other
                than abrasive blasting and certain welding operations. Further, the
                agency has reason to believe that any additional exposures that may
                occur do not present a dermal contact risk in these sectors. As a
                result, OSHA finds that it is appropriate to further tailor certain
                provisions of the beryllium standards for construction and shipyards--
                including the housekeeping requirements--to those operations for which
                the agency has data; that is, abrasive blasting operations with
                material containing trace amounts of beryllium and limited welding
                operations where dermal contact is not an exposure source of concern.
                 NABTU specifically urged OSHA to retain paragraph (j)(1), which
                requires employers to follow their written exposure control plans when
                cleaning beryllium-contaminated areas and dealing with spills and
                emergency releases. According to NABTU, OSHA's determination that the
                only sources of contamination with which employers need be concerned
                come from abrasive blasting is incorrect and therefore the ventilation
                standard for construction (29 CFR 1926.57(f)(7)) does not provide
                adequate coverage (Document ID 2240, p. 9). Similarly, AFL-CIO
                disagreed with the proposed removal of this paragraph stating that the
                existing ventilation standards for construction and shipyards are not
                effective at addressing the toxicity of beryllium (Document ID 2210,
                pp. 8-9; 2222, Tr. 116-17).
                 OSHA has determined that in the context of the known exposures in
                construction and shipyards sectors, the previous requirements of
                paragraph (j)(1) do not meaningfully increase protections for workers
                beyond those provided by existing OSHA standards. As stated above, the
                ventilation standards for construction (29 CFR 1926.57(f)(7)) and
                general industry (29 CFR 1910.94(a)(7)), applicable to shipyards, both
                require that spills must be cleaned up promptly, just as required by
                paragraph (j)(1) of the beryllium standards. Further, beyond the
                requirements of paragraph (j)(1), these standards specifically require
                that the employer not permit dust to accumulate outside of the abrasive
                blasting enclosure. These standards, in conjunction with the other
                provisions in paragraph (j) that serve to further reduce the potential
                for exposures above the PEL or STEL, provide the appropriate level of
                protection for workers in these sectors. Further, in light of the
                limited operations with beryllium exposure in these sectors, OSHA has
                determined that paragraph (j) provides sufficient guidance for
                employers on the limited circumstances in which they are allowed to use
                cleaning methods such as dry sweeping and compressed air, making a
                unique written plan for how to clean unnecessary in this context.
                Accordingly, the agency is removing from paragraph (j) the requirement
                for employers to follow the written exposure control plan in paragraph
                (f) when cleaning beryllium-contaminated areas and to ensure that
                spills and emergency releases of beryllium are cleaned up promptly and
                in accordance with the written exposure control plan.
                 AFL-CIO disagreed with what it framed as OSHA's decision to trigger
                the use of cleaning methods on exposures above the PEL or STEL instead
                of ``a more conservative trigger of beryllium-contamination,'' claiming
                the agency is ignoring the risk of health effects at exposures below
                the PEL (Document ID 2210, p. 9). First, OSHA notes that AFL-CIO
                misstates the revised trigger for paragraph (j)'s cleaning
                requirements. OSHA intentionally drafted the requirement to use
                cleaning methods that minimize the likelihood and level of airborne
                exposure (renumbered paragraph (j)(1)) and the prohibition on dry
                sweeping or brushing (renumbered paragraph (j)(2)) to apply whenever an
                employer ``cleans up dust resulting from'' operations that cause, or
                can reasonably be expected to cause, airborne exposure above the TWA
                PEL or STEL. As explained above, OSHA intends these provisions to apply
                where workers are either working in regulated areas in shipyards or in
                areas with exposures above the TWA PEL or STEL in construction.
                However, the requirements apply to cleaning up dust in these areas
                regardless of whether the operation that produced the dust is being
                performed at the time of the cleaning. In other words, cleaning methods
                are tied to the location of operations and are not triggered on active
                exposure above the TWA PEL or STEL, as AFL-CIO suggests. And although
                revised paragraph (j)(3) prohibits the use of compressed for cleaning
                when its use can reasonably be expected to cause airborne exposure
                above the PEL or STEL, compressed air would not satisfy paragraph
                (j)(1)'s requirement for the use of cleaning methods that minimize
                airborne exposure unless other more effective methods were infeasible.
                 Further, in the general industry DFR, OSHA revised the definitions
                of ``contaminated with beryllium'' and ``beryllium-contaminated'' to
                clarify that these terms refer to contamination with dust, fumes,
                mists, or solutions containing beryllium in concentrations greater than
                or equal to 0.1 percent by weight (83 FR at 19939-40). OSHA reiterates
                the agency's determination that beryllium contamination, as the agency
                defines it, does not occur from the trace quantities of beryllium used
                in abrasive blasting. OSHA has likewise determined that welding
                operations in shipyards do not produce this sort of skin or surface
                contamination. If OSHA maintained the term ``beryllium-contaminated''
                in paragraph (j), the requirements for when and how employers can use
                dry sweeping, brushing, or compressed air, or when they must employ
                cleaning methods that minimize airborne exposure, would likely never be
                triggered and workers already exposed would not receive the benefit of
                these protections. For this reason, OSHA has determined that it is more
                appropriate to trigger these requirements on the presence of dust
                produced by an operation that causes, or can reasonably be expected to
                cause, airborne exposure above the TWA PEL or STEL.
                 AFL-CIO also indicated that they opposed OSHA's proposal ``to
                remove the requirement for `HEPA filtered vacuuming' '' in renumbered
                paragraphs (j)(1) and (2) and questioned the agency's preliminary
                determination that such methods may be problematic due to overloading
                and clogging of the filters (Document ID 2210, p. 8). AFL-CIO contended
                that HEPA-filtered vacuuming is commonly used and required in other
                OSHA dust standards and that the record shows this method is the most
                effecting and safe way to clean toxic dusts and therefore should be
                used (Document ID 2210, pp. 8-9). OSHA disagrees with AFL-CIO's
                interpretation that OSHA is removing a requirement to use HEPA-filtered
                vacuuming. Paragraph (j) has never required the use of HEPA-filtered
                vacuuming, but instead required the use of HEPA-filtered vacuuming ``or
                other methods that minimize the likelihood and level of airborne
                exposure.'' The proposed change removed the specific reference to HEPA-
                filtered vacuuming while maintaining the requirement that employers
                utilize cleaning methods that
                [[Page 53954]]
                minimize the likelihood and level of airborne exposure. OSHA has always
                intended this requirement to be performance-oriented (see 82 FR at
                2691). Further, in the 2017 final rule, OSHA acknowledged that
                ``methods that minimize the likelihood and level of airborne exposure
                other than HEPA vacuuming may be appropriate for use in construction
                and shipyards'' (82 FR at 2693). Alternative methods that are effective
                in minimizing the likelihood and level of airborne exposure can include
                the use of dust suppressants and wet methods such as wet sweeping or
                wet shoveling (see 82 FR at 2693).
                 Moreover, revised paragraphs (j)(1) and (2) do not preclude the use
                of HEPA-filtered vacuuming for cleaning. Removing this reference simply
                eliminates any misunderstanding that HEPA-filtered vacuuming is
                required (as AFL-CIO misinterpreted), particularly where HEPA-filtered
                vacuuming proves problematic for the particular situation involving the
                cleanup. Specifically, as OSHA noted in the proposal, abrasive blasting
                operations produce large amounts of spent abrasive and particulate and
                the use of HEPA vacuums to clean up these materials may result in
                continual filter overload and clogging. Constant cleaning of these
                filters could in fact cause additional exposures. OSHA has determined
                that removing the specific reference to HEPA-filtered vacuuming while
                continuing to allow its use is the appropriate approach for the
                construction and shipyards sectors.
                 The CISC expressed concern about OSHA's inclusion of restrictions
                on the use of dry sweeping and brushing for cleaning materials that
                contain beryllium (Document ID 2203, pp. 16-17). CISC asserted that
                employers will need to ``assess the extent of naturally occurring
                beryllium in numerous construction materials to determine whether and
                how the restriction would apply'' (Document ID 2203, p. 17). OSHA
                disagrees with this perceived consequence of prohibiting the use of dry
                sweeping and brushing. These restrictions apply only when cleaning up
                dust from operations that cause, or can reasonably be expected to
                cause, airborne exposure above the TWA PEL or STEL (29 CFR
                1926.1124(j)(2)). As explained elsewhere in this preamble, there is no
                evidence in the record demonstrating that naturally occurring beryllium
                in common construction materials at the typical construction site
                create exposures of concern, as CISC suggest. OSHA addresses similar
                assertions by CISC regarding trace amounts of naturally occurring
                beryllium in the Summary and Explanation for paragraph (f).
                 After reviewing these comments and considering the record as a
                whole, OSHA has determined the proposed changes addressing the use of
                cleaning methods and prohibiting dry sweeping or brushing will protect
                workers from exposure to beryllium during cleaning operations and bring
                clarity to the requirements of these provisions. Therefore, OSHA is
                adopting the changes to renumbered paragraphs (j)(1) and (2) as
                proposed.
                 AFL-CIO also raised concerns that revised paragraph (j)(3) only
                prohibits the use of compressed air for cleaning when the use causes,
                or can reasonably be expected to cause, exposures above the PEL or STEL
                (Document ID 2210, p. 9). AFL-CIO stated that it is a significant
                deviation from the current provision, which prohibits compressed air
                unless combined with a ventilation system. In response to OSHA's
                preliminary determination that ventilation may be impractical in very
                dusty environments like those created by abrasive blasting operations,
                AFL-CIO argued that the agency has not demonstrated that the use of
                ventilation is infeasible or that the requirement for engineering
                controls should be removed, ``relying only on the use of respirators .
                . . , ignoring the hierarchy of controls'' (Document ID 2210, p. 9).
                Finally, AFL-CIO states that OSHA previously determined that
                prohibiting compressed air unless combined with ventilation was a
                practical and feasible approach in dusty environments, and that this
                provision is included in other dust standards (Document ID 2210, p. 9).
                 First, OSHA believes that ALF-CIO has misunderstood the hierarchy
                of the housekeeping provisions. The housekeeping requirements in
                paragraph (j) are triggered when workers clean up dust resulting from
                operations that cause, or are reasonably expected to cause, airborne
                exposure above the TWA PEL or STEL. Under paragraph (j)(1), when
                cleaning in these areas employers must ensure the use of methods that
                minimize the likelihood and level of airborne exposures. As explained
                above, the use of compressed air does not satisfy this requirement
                unless other more effective measures are infeasible. Following the
                hierarchy of controls, only after other methods that minimize exposures
                are shown to be ineffective or unsafe can the employer use methods such
                as dry sweeping, brushing, or compressed air, and then must provide and
                ensure the use of respiratory protection and PPE during these
                activities under paragraph (j)(4). Even so, under revised paragraph
                (j)(3), compressed air is entirely prohibited when its use causes, or
                can reasonably be expected to cause, airborne exposure above the TWA
                PEL or STEL.
                 OSHA further notes that the evidence in the record demonstrates
                that abrasive blasting helpers, those responsible for cleaning up spent
                abrasive, largely have minimal exposure to beryllium. As explained in
                the Technological Feasibility chapter of the 2017 final rule Final
                Economic Analysis (FEA), of the 30 abrasive blasting cleanup workers in
                the exposure profile of the FEA, two had exposures over the new PEL of
                0.2 mg/m\3\. One cleanup worker had an 8-hour TWA sample result of 1.1
                mg/m\3\, but blasting took place in the area during this worker's
                cleanup task and it is likely that the nearby abrasive blasting
                contributed to the sample result. The other cleanup worker had a sample
                result of 7.4 mg/m\3\, but that worker's exposure appears to be
                associated with the use of compressed air for cleaning in conjunction
                with nearby abrasive blasting (82 FR at 29197). This supports OSHA's
                determination that the use of compressed air can cause exposure over
                the PEL or STEL and, in this case, this activity would have been
                prohibited under revised paragraph (j)(3).
                 After reviewing these comments and considering the record as a
                whole, OSHA finds the proposed change prohibiting the use of compressed
                air for cleaning where its use causes, or can reasonably be expected to
                cause, airborne exposure above the TWA PEL or STEL will limit the use
                of compressed air, such as when other methods are not feasible or
                effective. Also, by requiring respirator use and personal protective
                clothing and equipment where employees use dry sweeping, brushing, or
                compressed air to clean will protect workers from exposure to beryllium
                in circumstances when there is no feasible, alternative methods for
                cleaning. Therefore, OSHA is adopting the changes to paragraphs (j)(3)
                and (4) as proposed.
                 AFL-CIO also disagreed with OSHA's proposal to eliminate former
                paragraph (j)(3), which required the employer to provide a copy of the
                warning described in paragraph (m)(2) whenever it transferred materials
                containing beryllium to another party for use or disposal. AFL-CIO
                asserted that removing this provision would result in beryllium
                exposure to downstream employers and workers (Document ID 2210, p. 9).
                AFL-CIO indicated their belief that OSHA's general hazard
                communications standard (HCS) is not sufficient to protect downstream
                recipients of waste materials.
                [[Page 53955]]
                 As explained in the Summary Explanation for paragraph (m), OSHA
                proposed to remove the labeling requirements in paragraph (m), such as
                the label referenced in paragraph (j)(3), to account for the trace
                amounts of beryllium encountered in the construction and shipyards
                sectors and to align these standards with the general industry
                beryllium standard, which does not require the labeling of material
                containing less than 0.1 percent beryllium by weight. OSHA reiterates
                its finding that the known exposures in these sectors are limited to
                materials containing beryllium in trace quantities and do not present a
                risk from dermal contact. Further, there is no evidence in the record
                that downstream recipients of these materials are at risk of airborne
                exposure above the PEL or STEL from the trace amounts of beryllium in
                these materials.
                 Moreover, OSHA explained in the NPRM that abrasive blasting media
                is often contaminated with several toxic chemicals such as hexavalent
                chromium or lead from the blasted substrate or coating on the substrate
                (84 FR at 53918; see OSHA Fact Sheet, Protecting Workers from the
                Hazards of Abrasive Blasting Materials, available at https://www.osha.gov/Publications/OSHA3697.pdf). AFL-CIO itself identified
                lead, cadmium, and arsenic as hazards associated with abrasive blasting
                operations (Document ID 2244, p. 11). OSHA remains concerned that
                providing warnings specific to beryllium for materials that contain
                trace beryllium and where airborne exposures are not anticipated to be
                significant may overshadow or dilute hazard warnings for other
                substances that do present a risk in this context. Neither AFL-CIO nor
                any other commenter contradicted this concern. OSHA finds that the
                general HCS requirements provide the appropriate information for spent
                abrasive blasting media containing only trace amounts of beryllium,
                where the material may be contaminated with several other toxic
                substances. Accordingly, OSHA is finalizing its proposal to remove
                former paragraph (j)(3) from the construction and shipyards standards.
                 In conclusion, based on the record as a whole OSHA is finalizing
                paragraph (j) as proposed.
                Paragraph (k) Medical Surveillance
                 Paragraph (k) of the beryllium standard for construction and
                shipyards addresses medical surveillance requirements. The paragraph
                specifies which employees must be offered medical surveillance, as well
                as the frequency and content of medical examinations. It also sets
                forth the information that must be provided to the employee and
                employer. The purposes of medical surveillance for beryllium are (1) to
                identify beryllium-related adverse health effects so that appropriate
                intervention measures can be taken; (2) to determine if an employee has
                any condition that might make him or her more sensitive to beryllium
                exposure; and (3) to determine the employee's fitness to use personal
                protective equipment, such as respirators. The inclusion of medical
                surveillance in the beryllium standards for the construction and
                shipyard industries is consistent with Section 6(b)(7) of the OSH Act
                (29 U.S.C. 655(b)(7)), which requires that, where appropriate, medical
                surveillance programs be included in OSHA health standards to aid in
                determining whether the health of employees is adversely affected by
                exposure to the hazards addressed by the standard.
                 In the 2019 NPRM, OSHA proposed several revisions to paragraph (k).
                First, OSHA proposed removing paragraph (k)(1)(i)(C), which requires
                medical surveillance after exposure to beryllium during an emergency,
                to coincide with the removal of the term ``emergency'' from the
                standards (84 FR at 53918-19). Second, OSHA proposed minor revisions to
                paragraphs (k)(3)(ii)(A) and (k)(4)(i) to replace the phrase ``airborne
                exposure to and dermal contact with beryllium'' in these provisions
                with the simpler phrase ``exposure to beryllium'' (84 FR at 53919).
                Finally, OSHA proposed two revisions to paragraph (k)(7)(i) to make it
                consistent with recent changes to the beryllium general industry
                standard \33\ (84 FR at 53919).
                ---------------------------------------------------------------------------
                 \33\ OSHA also proposed a number of minor, non-substantive edits
                to paragraph numbering and references to account for the addition of
                a new paragraph (k)(7)(ii).
                ---------------------------------------------------------------------------
                 With respect to OSHA's proposal to remove paragraph (k)(1)(i)(C),
                as discussed previously in the Summary and Explanation for paragraph
                (b), OSHA proposed to remove references to emergencies in the shipyards
                and construction standards because OSHA expects that any emergency in
                these industries (such as a release resulting from a failure of the
                blasting control equipment, a spill of the abrasive blasting media, or
                the failure of a ventilation system during welding operations in
                shipyards) would occur only during the performance of routine tasks
                already associated with the airborne release of beryllium; i.e., during
                the abrasive blasting or welding process. Therefore, employees would
                already be protected from exposure in such circumstances. Accordingly,
                OSHA preliminarily determined that no requirements should be triggered
                for emergencies in construction and shipyards and proposed to remove
                references to emergencies in provisions related to respiratory
                protection, paragraph (g); medical surveillance, paragraph (k); and
                hazard communication, paragraph (m). The agency also preliminarily
                determined that without these provisions it would be unnecessary to
                define the term emergency in paragraph (b) (84 FR at 53909).\34\
                ---------------------------------------------------------------------------
                 \34\ Due to the removal of paragraph (k)(1)(i)(C), OSHA is also
                adding the word ``or'' at the end of paragraph (k)(1)(i)(B)
                (following the semi-colon); removing a reference to paragraph
                (k)(1)(i)(C) from paragraph (k)(2)(i)(B); and redesignating
                paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C). Consistent with
                that redesignation, OSHA is replacing the reference to paragraph
                (k)(1)(i)(D) in paragraph (k)(2)(ii) with a reference to paragraph
                (k)(1)(i)(C).
                ---------------------------------------------------------------------------
                 Some commenters objected to the proposed removal of provisions
                relating to emergencies. Specifically, these commenters took issue with
                OSHA's preliminary determination that an uncontrolled release of
                beryllium in the construction and shipyards industries would not create
                exposures that differ from normal operations. For a full discussion of
                these comments and the agency's response, see the Summary and
                Explanation for paragraph (g). In short, the agency is not persuaded
                that the types of uncontrolled releases that necessitated emergency
                provisions in the general industry standard are present in the
                construction and shipyards industries. Accordingly, OSHA is finalizing
                its proposal to remove all references to ``emergency'' or
                ``emergencies'' throughout the construction and shipyards standards.
                Because those terms no longer appear in the standards' requirements,
                OSHA is also finalizing its proposal to remove the definition of the
                term ``emergency'' from paragraph (b).
                 AFL-CIO, NABTU, and NJH specifically commented on the proposed
                removal of the emergency exposure trigger for a medical examination in
                paragraph (k). AFL-CIO opposed the removal of the emergency provisions
                and argued that medical surveillance should be required following an
                emergency (Document ID 2210, p. 9). NABTU commented that a failure of a
                containment used for abrasive blasting would be considered an emergency
                (Document ID 2222, Tr. 85-86, 91-92). NABTU also noted situations where
                construction workers could experience emergency exposures to beryllium
                in manufacturing and processing facilities, and it urged OSHA to retain
                the
                [[Page 53956]]
                definition for emergency and other related protections, such as the
                trigger for an emergency examination. (Document ID 2240, p. 7). NABTU
                also commented that questions about emergency exposures should ``be
                included in the medical and work histories, to ensure that pertinent
                information about potential exposures is not overlooked.'' (Document ID
                2240, p. 8). In contrast, NJH agreed with OSHA that emergencies might
                not occur, but recommended that if the trigger for emergency exposure
                is removed, any exposure above the PEL should trigger medical
                surveillance (Document ID 2211, p. 11). Specifically, NJH commented:
                ``Jobs and tasks that would generate beryllium exposure (demolition,
                repair, clean up, abrasive blasting, welding, cleaning and grinding of
                beryllium containing tools, etc.) may only be done periodically and
                meeting the ``30 days over the action level'' in order to qualify for
                medical surveillance may not be easy to quantify or may require
                extensive recordkeeping as workers move from job to job or contract to
                contract. Therefore, any exposures above the PEL should trigger the
                medical surveillance and hazard communication provisions.'' (Document
                ID 2211, p. 11). Lisa Barker from NJH further testified that persons
                who are genetically susceptible can become sensitized from limited
                exposures (Document ID 2222, Tr. 56-57).
                 As explained in the Summary and Explanation for paragraph (g), OSHA
                is not reinstating a definition for emergency, and readers should refer
                to that section for a complete explanation. In response to NABTU's
                comment that emergency exposures should be included in medical and work
                histories, OSHA does not specify the individual questions to include in
                a medical and work history. Instead, OSHA simply requires that medical
                and work histories include ``past and present exposure to beryllium.''
                An unexpected exposure, such as would occur with a containment failure,
                would therefore be included in the medical and work history for an
                employee who undergoes medical surveillance under the beryllium
                standard. In addition, paragraph (k)(4)(i) requires the employer to
                inform the PLHCP about former and current levels of airborne exposure.
                OSHA would expect the employer to inform the PLHCP if the employee
                experienced an incident where he or she was exposed to levels of
                beryllium that exceeded the employee's typical exposure levels.
                 In response to NJH's suggestion that, if the emergency provision is
                removed, OSHA should require medical surveillance for any exposure
                above the PEL, OSHA notes that NJH's position is not limited to
                exposures in an emergency but to any exposures any exposures above the
                PEL that occur for fewer than 30 days. In other words, NJH asks OSHA to
                reconsider the appropriateness of the 30-day exposure-duration trigger
                generally. OSHA evaluated the appropriateness of the 30-day trigger in
                the 2017 final rule. At that time, NJH and other stakeholders opposed
                the 30-day exposure-duration trigger for medical surveillance. After
                careful consideration of comments and other evidence in the record,
                OSHA decided to maintain the 30-day exposure-duration trigger because
                it is consistent with the agency's risk assessment showing increasing
                risk of health effects from exposure at increasing cumulative
                exposures, which considers both exposure level and duration (82 FR at
                2528-40, 2698). OSHA found a 30-day trigger to be a reasonable
                benchmark for capturing increasing risk from cumulative effects caused
                by repeated exposures. Between that rulemaking and the present, OSHA
                has not received any additional evidence demonstrating that this
                benchmark is inappropriate. Finally, OSHA notes that the 30-day
                exposure-duration trigger is consistent with the general industry
                beryllium standard and other OSHA health standards, such as the
                standards for chromium (VI) (29 CFR 1910.1026), cadmium (29 CFR
                1910.1027), lead (29 CFR 1910.1025), asbestos (29 CFR 1910.1001), and
                respirable crystalline silica (29 CFR 1910.1053) (82 FR at 2698).
                 With respect to NJH's related concern regarding the tracking of
                exposures in the construction industry--where tasks may be performed
                intermittently at different locations--similar concerns were raised
                during the respirable crystalline silica rulemaking. In that
                rulemaking, OSHA acknowledged that tracking exposures in construction
                can be challenging. However, it pointed to evidence in the record
                showing that some construction employers were able to determine which
                employees were exposed above the PEL based on employee schedules and
                task-based hazard assessments. (81 FR 16285, 16815-16 (March 25,
                2016)). Indeed, an employer can determine eligibility for medical
                surveillance based on information from exposure assessments for the
                various tasks and knowledge about how often the task is performed.
                Compliance officers can also determine if employees who were exposed at
                or above the action level for 30 or more days a year were not offered
                medical surveillance by questioning employees about how often they
                perform certain tasks. As such, OSHA finds it is possible to quantify
                exposure for employees that are only periodically exposed to beryllium
                without extensive recordkeeping. Accordingly, OSHA believes it is
                appropriate to maintain the 30-day trigger and that this will not
                create undue burdens with respect to recordkeeping.
                 Moreover, employees experiencing signs or symptoms or other
                beryllium-related health effects after intermittent or unexpected
                exposures to beryllium can ask for an examination under paragraph
                (k)(1)(i)(B). Paragraph (m)(2)(i)(A) requires the employer to provide
                information and training in accordance with the Hazard Communication
                Standard (HCS), 29 CFR 1910.1200(h), for each employee who has, or can
                reasonably be expected to have, airborne exposure to beryllium.
                Paragraph (m)(2)(ii) also requires employers to ensure that these
                employees can demonstrate knowledge and understanding of a number of
                specified topics, including the signs and symptoms of CBD. Thus,
                employees who are intermittently exposed should possess the knowledge
                necessary to determine whether they should request an examination. In
                summary, OSHA has determined that the evidence presented does not
                support reinstating triggers for an emergency exposure or reconsidering
                the 30-day exposure-duration as a trigger for medical surveillance.
                 The second set of changes that OSHA proposed were minor revisions
                to paragraphs (k)(3)(ii)(A) and (k)(4)(i). Paragraph (k)(3)(ii)(A)
                previously required the employer to ensure that the employee is offered
                a medical examination that includes a medical and work history, with an
                emphasis on, among other things, past and present airborne exposure to
                or dermal contact with beryllium. Paragraph (k)(4)(i) previously
                required the employer to ensure that the examining PLHCP (and the
                agreed upon CBD diagnostic center, if an evaluation is required under
                paragraph (k)(7) of this standard) had certain information, including a
                description of the employee's former and current duties that relate to
                the employee's airborne exposure to and dermal contact with beryllium,
                if known. In the 2019 NPRM, OSHA proposed to clarify these provisions
                by replacing the phrase ``airborne exposure to and dermal contact with
                beryllium'' with the simpler phrase ``exposure to beryllium'' (84 FR at
                53919). OSHA reasoned that employees with beryllium exposure of any
                kind should have access to records of their exposure, and this
                information should also be made
                [[Page 53957]]
                available to an examining PLHCP and CBD diagnostic center, if
                applicable. OSHA intended for this proposed change to alleviate any
                unnecessary confusion created by the use of the term ``dermal
                contact,'' which is defined in the general industry standard but not in
                the construction and shipyards standards.
                 AFL-CIO and NABTU commented on OSHA's proposed changes to
                paragraphs (k)(3) and (4). AFL-CIO opposed OSHA's proposed revision to
                paragraph (k)(4)(i), arguing that it is important for the physician to
                be informed about both airborne and dermal exposures and that removing
                that clarification would increase confusion by putting the burden on
                the employer and physician to understand OSHA's intent (Document ID
                2210, p. 9). In further support of retaining provisions that provide
                protection from dermal exposure, AFL-CIO referenced a previous comment
                from NABTU stating that the skin should be examined because beryllium
                exposure can result in ``skin irritation, skin bumps, and sores that
                won't heal.'' (Document ID 2244, pp. 8-9; 1679, Attachment A, p. 1).
                NABTU commented that OSHA should retain the ``protections against
                airborne exposures'' in paragraph (k)(3) (Document ID 2240, p. 6).
                 OSHA clarifies that it does not intend to change the requirements
                for the type of information provided to the physician, and if the
                employee does have the potential for dermal exposure, the employer is
                to provide that information to the physician. OSHA proposed this change
                not to limit the type of information provided to physicians, but
                instead, to make clear that employers and employees should inform
                physicians about any type of beryllium exposure. OSHA continues to
                believe that the change will reduce confusion by removing terminology--
                the reference to dermal contact--that is not used in the construction
                and shipyards standard. In addition, the requirement for the PLHCP to
                examine the skin for rashes is retained in paragraph (k)(3)(ii)(C).
                Consistent with the 2017 final rule, OSHA continues to believe that it
                is important to examine the skin for rashes because it could be a sign
                that dermal sensitization or exposures that put the employee at risk of
                sensitization have occurred (82 FR at 2471). OSHA disagrees with AFL-
                CIO that simplifying the language of these provisions will result in
                confusion, because the revised text clearly encompasses all exposure to
                beryllium. Accordingly, OSHA has decided to finalize the changes to
                paragraph (k)(3)(ii)(A) and (k)(4)(i) as proposed.
                 The final set of changes that OSHA proposed to the construction and
                shipyard standards' medical surveillance requirements is in paragraph
                (k)(7), which contains the requirements for an evaluation at a CBD
                diagnostic center. In this final rule, OSHA is amending paragraph
                (k)(7) in three ways. First, OSHA is revising paragraph (k)(7)(i) to
                require that the evaluation be scheduled within 30 days, and occur
                within a reasonable time, of the employer receiving one of the types of
                documentation listed in paragraph (k)(7)(i)(A) or (B). Second, OSHA is
                adding a provision in paragraph (k)(7)(ii), which clarifies that, as
                part of the evaluation at the CBD diagnostic center, the employer must
                ensure that the employee is offered any tests deemed appropriate by the
                examining physician at the CBD diagnostic center, such as pulmonary
                function testing (as outlined by the American Thoracic Society
                criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The
                new provision also states that if any of the tests deemed appropriate
                by the examining physician are not available at the CBD diagnostic
                center, they may be performed at another location that is mutually
                agreed upon by the employer and the employee. Third, OSHA is making a
                number of minor, non-substantive revisions to the numbering and cross-
                references in paragraph (k)(7) to account for the addition of new
                paragraph (k)(7)(ii). Specifically, OSHA is renumbering current
                paragraphs (k)(7)(ii), (iii), (iv), and (v) as (k)(7)(iii), (iv), (v),
                and (vi), respectively, and is adding a reference to new paragraph
                (k)(7)(ii) to the newly renumbered paragraph (k)(7)(vi). These proposed
                changes are consistent with changes the agency proposed to paragraph
                (k)(7)(i) of the beryllium standard for general industry in December
                2018.
                 Each of these final revisions differ in some way from the proposed
                amendments based on stakeholder feedback. With regard to the first
                change concerning the timing of the exam, the previous standard
                required employers to provide the examination within 30 days of the
                employer receiving one of the types of documentation listed in
                paragraph (k)(7)(i)(A) or (B). The purpose of the 30-day requirement
                was to ensure that employees receive the examination in a timely
                manner. However, since the publication of the 2017 final rule,
                stakeholders have raised concerns that it is not always possible to
                schedule and complete the examination and any required tests within 30
                days (84 FR at 53919).
                 To address this concern, OSHA proposed that the employer provide an
                initial consultation with the CBD diagnostic center, which could occur
                via telephone or virtual conferencing methods, rather than the full
                evaluation, within 30 days of the employer receiving one of the types
                of documentation listed in paragraph (k)(7)(i)(A) or (B). OSHA
                explained that providing a consultation before the full examination at
                the CBD diagnostic center would demonstrate that the employer made an
                effort to begin the process for a medical examination. OSHA also noted
                that the proposed change would also (1) allow the employee to consult
                with a physician to discuss concerns and ask questions while waiting
                for a medical examination, and (2) allow the physician to explain the
                types of tests that are recommended based on medical findings about the
                employee and explain the risks and benefits of undergoing such testing.
                In both the 2019 NPRM for construction and shipyards (84 FR at 53919)
                and the 2018 NPRM for general industry (83 FR at 63758), OSHA requested
                comments on the appropriateness of providing the initial consultation
                within 30 days and on the sufficiency of a consultation via telephone
                or virtual conference.
                 OSHA received several comments on the proposed changes from NJH,
                AFL-CIO, and Materion. NJH commented that an examination at the CBD
                diagnostic center should not be required to occur within 30 days of the
                referral because openings at clinics may not be available within a 30-
                day period (Document ID 2211, p. 12). NJH further noted that ``[i]t is
                common practice in most diagnostic centers to schedule specialty exams
                within a 3-month window due to the need to coordinate worker time away
                from work and home, physician visits, pulmonary function testing, chest
                imaging, bronchoscopy and other testing for one clinical evaluation
                visit'' (Document ID 2211, p. 12). At the public hearing, NJH testified
                that an evaluation can take up to three days when an employee undergoes
                procedures such as bronchoscopy because the employee has to be cleared
                for testing, undergo testing on the following day, and then spend the
                night locally to ensure there are no adverse effects before discharge
                (Document ID 2222, Tr. 54).\35\ NJH also
                [[Page 53958]]
                opposed the proposed requirement for a consultation that can be
                performed via telephone or virtual conferencing within 30 days of the
                employer receiving documentation recommending a referral. NJH
                commented: ``A video or phone consultation adds cost and logistics to
                scheduling and is not necessary as the PLHCP who sees the employee for
                screening provides information on the clinical evaluation. HIPAA
                privacy issues of a phone or video conference also exist. A full
                clinical evaluation including review of both the available medical and
                exposure data and hands-on medical assessment are essential to
                providing the best, most efficient care--from a time and financial
                perspective.'' (Document ID 2211, pp. 12-13.)
                ---------------------------------------------------------------------------
                 \35\ In response to the 2018 NPRM for general industry, OSHA
                received similar comments on the proposed timeline for the
                evaluation at the CBD Diagnostic Center from ATS, NJH, and Materion
                (Document ID OSHA-2018-0003-0021, p. 3; OSHA-2018-0003-0022, pp. 5-
                6; OSHA-2018-0003-0038, p. 34). DOD recommended that the evaluation
                at the CBD Diagnostic center be scheduled within seven days
                (Document ID OSHA-2018-0003-0029, p. 2), but OSHA found that this
                would not give employees enough time to consider obligations and
                have discussions with family members. The agency also found the 30-
                day trigger to be administratively convenient because it is
                consistent with other triggers in the beryllium standard (85 FR
                42621).
                ---------------------------------------------------------------------------
                 Lisa Barker from NJH further testified that workers who are
                sensitized but feel well may decide to forgo additional testing
                following a video consultation (Document ID 2222, Tr. 54-55). These
                workers would miss the opportunity to determine if they have the
                disease, and if so, receive treatments to slow progression upon initial
                confirmation of sensitization (Document ID 2222, Tr. 54-55). NJH also
                expressed concerns related to the expertise and availability of a PLHCP
                who might perform the consultation and about workers who may not have a
                health care provider to facilitate a phone or video consultation
                (Document ID 2243, p. 6).
                 NJH recommended that the employer be required to schedule the
                appointment within 30 days, but that the actual evaluation can take
                place beyond 30 days of the confirmed abnormal result (Document ID
                2211, p. 13). AFL-CIO agreed with NJH on the proposed timeline for an
                evaluation at a CBD diagnostic center (Document ID 2210, p. 9).
                Materion agreed with NJH that an evaluation at the CBD diagnostic
                center should be scheduled within 30 days after sensitization is
                confirmed and documented; however, it noted that employees can withhold
                test results from employers (Document ID 2237, p. 5).\36\
                ---------------------------------------------------------------------------
                 \36\ In response to the NPRM for general industry, Materion
                found OSHA's proposed change for a consultation with a CBD
                diagnostic center more workable than an evaluation at a CBD
                Diagnostic Center within 30 days, but similar to the comments
                provided for this construction and shipyards NPRM, ATS and NJH
                disagreed with the requirement for a consultation (Document ID OSHA-
                2018-0003-0038, p. 34; OSHA-2018-0003-0021, p. 3; OSHA-2018-0003-
                0022, pp. 5-6).
                ---------------------------------------------------------------------------
                 After considering these comments, OSHA is convinced that scheduling
                a phone or virtual consultation with the CDB diagnostic center is an
                unnecessary step that adds logistical complications and costs. OSHA
                finds that the scheduling approach suggested by NJH addresses both the
                logistical difficulties and the timing concerns with respect to the
                requirements in the current standard. Moreover, OSHA finds that
                employees will have enough information (through trainings under
                paragraph (m) and discussions with the PLHCP) to allow them to decide
                whether to choose to be evaluated at the CBD diagnostic center without
                the need for an additional consultation.\37\ OSHA is therefore amending
                paragraph (k)(7)(i) to require that the employer schedule an
                examination at a CBD diagnostic center within 30 days of receiving one
                of the types of documentation listed in paragraph (k)(7)(i)(A) or (B).
                In response to Materion's concern that an employee can choose to
                withhold the recommendation for an evaluation at a CBD diagnostic
                center from the employer, the paragraph makes clear that the
                appointment must be scheduled within 30 days of the ``employer's
                receipt'' of the appropriate documentation. That means that the
                employer's obligations do not commence until the employer receives the
                documentation for an evaluation at a CBD diagnostic center following
                the employee's authorization.
                ---------------------------------------------------------------------------
                 \37\ Under paragraph (k)(6)(i)(D), the employer is to ensure
                that the PLHCP explains the results of the medical examination to
                the employee, including results of tests conducted and medical
                conditions related to airborne beryllium exposure that require
                further evaluation or treatment.
                ---------------------------------------------------------------------------
                 To achieve the intent of the 2017 final rule and the 2019 NPRM that
                evaluation at a CBD diagnostic center occurs in a timely manner, OSHA
                is adding that the evaluation must occur within a reasonable time.
                Requiring that the evaluation occur within a reasonable time ensures
                that the evaluation be done as soon as practicable based upon
                availability of openings at the CBD diagnostic center and the
                employee's preferences. This revision better addresses OSHA's original
                intent that the employee be examined within a timely period, while
                providing employees and employers with maximum flexibility and
                convenience.
                 The second change that OSHA proposed to paragraph (k)(7)(i) relates
                to the contents of the examination at the CBD diagnostic center. As
                discussed in more detail above, the former definition of CBD diagnostic
                center--which stated that the evaluation at the diagnostic center
                ``must include'' a pulmonary function test as outlined by American
                Thoracic Society criteria, bronchoalveolar lavage (BAL), and
                transbronchial biopsy--could have been misinterpreted to mean that the
                examining physician was required to perform each of these tests during
                every clinical evaluation at a CBD diagnostic center. That was not
                OSHA's intent. Rather, the agency merely intended to ensure that any
                CBD diagnostic center has the capacity to perform any of these tests,
                which are commonly needed to diagnose CBD. Therefore, OSHA proposed
                revising the definition to clarify that the CBD diagnostic center must
                simply have the ability to perform each of these tests when deemed
                appropriate.
                 To account for that proposed change to the definition of CBD
                diagnostic center and to ensure that the employer provides those tests
                if deemed appropriate by the examining physician at the CBD diagnostic
                center, OSHA proposed expanding paragraph (k)(7)(i) to require that the
                employer provide, at no cost to the employee and within a reasonable
                time after consultation with the CBD diagnostic center, any of the
                three tests mentioned above, if deemed appropriate by the examining
                physician at the CBD diagnostic center (84 FR at 53919). OSHA explained
                that the revision would also clarify the agency's original intent that,
                instead of requiring all three tests to be conducted after referral to
                a CBD diagnostic center, the standard would allow the examining
                physician at the CBD diagnostic center the discretion to select one or
                more of those tests as appropriate (84 FR at 53919).
                 OSHA received comments addressing the types of tests that should be
                conducted for the evaluation of CBD. NJH commented that at a minimum, a
                clinical evaluation for CBD should include ``full pulmonary function
                testing (including lung volumes, spirometry and diffusion capacity for
                carbon monoxide) and chest imaging'' (Document ID 2211, p. 4); that the
                examination should include ``bronchoalveolar lavage and biopsy, whether
                or not a person shows signs or symptoms of frank, chronic beryllium
                disease'' (Document ID 2222, Tr. 56); and that ``the services should be
                available at the center'' (Document ID 2211, p. 12). NJH recommended
                that OSHA follow the American Thoracic Society guidelines recommending
                that beryllium sensitized individuals undergo ``[Pulmonary function
                testing] and chest imaging (either a chest radiograph or chest CT
                [computerized tomography] scan,'' with consideration of bronchoscopy,
                depending on
                [[Page 53959]]
                ``absence of contraindications, evidence of pulmonary function
                abnormalities, evidence of abnormalities on chest imaging, and personal
                preference of the patient'' (Document ID 2211, pp. 2, 4, 12).
                Similarly, NABTU submitted a description of the Building Trades
                National Medical Screening Program recommending that sensitized persons
                without clinical signs of CBD undergo pulmonary function testing and a
                high resolution chest CT, with lavage or biopsy only if the pulmonary
                function tests or CT scans suggest CBD or if the patient prefers to
                undergo lavage or biopsy (Document ID 2202, Attachment 4, PDF page 97).
                Lisa Barker from NJH testified that if OSHA does not specify such
                tests, medical directors may not order some tests because of a lack of
                education or information or because the worker feels well and is not
                interested in an evaluation (Document ID 2222, Tr. 66-68).\38\
                ---------------------------------------------------------------------------
                 \38\ Similar comments regarding the need for certain tests to
                diagnose CBD were submitted in response to the general industry NPRM
                by ATS, NJH, and AOEC (Document ID OSHA-2018-0003-0021, p. 3; OSHA-
                2018-0003-0022, p. 3; OSHA-2018-0003-0028, p. 2).
                ---------------------------------------------------------------------------
                 After reviewing these comments and the remainder of the record on
                this issue, OSHA remains convinced that pulmonary function testing,
                BAL, and transbronchial biopsies are important diagnostic tools but
                finds that the examining physician at the CBD diagnostic center is in
                the best position to determine which diagnostic tests are appropriate
                for particular workers. The agency believes that the modified
                definition of the term CBD diagnostic center, which requires the
                centers to have the capacity to perform these three tests, will serve
                to ensure that healthcare providers at the centers are aware of the
                importance of and are able to perform these tests.
                 However, OSHA understands that the proposed provision could be
                misinterpreted to mean that the employer does not have to make
                available additional tests that the examining physician deems
                appropriate for reasons such as diagnosing or determining the severity
                of CBD. That was never the agency's intent. In fact, OSHA noted the
                potential for other tests, as deemed necessary by the CBD diagnostic
                center physician, at several points in the preamble to the 2017 final
                rule (see, e.g., 82 FR at 2709, 2714). Similar to paragraph
                (k)(3)(ii)(G), which provides that the employer must ensure that the
                employee is offered as part of the initial or periodic medical
                examination any test deemed appropriate by the PLHCP, OSHA intends for
                the employer to ensure the employee is offered any tests deemed
                appropriate by the examining physician at the CBD diagnostic center,
                including tests for diagnosing CBD, for determining its severity, and
                for monitoring progression of CBD following diagnosis. Allowing the
                physician at the CBD diagnostic center to order additional tests that
                are deemed appropriate is also consistent with most OSHA substance-
                specific standards, such as respirable crystalline silica (29 CFR
                1910.1053) and chromium (VI) (29 CFR 1910.1026).
                 To clarify the agency's intent that the physician at the CBD
                diagnostic center has discretion to order appropriate tests, and to
                further respond to stakeholder concerns regarding the necessity of
                pulmonary function testing, BAL, and transbronchial biopsies, OSHA is
                adding a new paragraph (k)(7)(ii), which focuses on the content of the
                examination. This new provision requires that the evaluation include
                any tests deemed appropriate by the examining physician at the CBD
                diagnostic center, such as pulmonary function testing (as outlined by
                the ATS criteria), BAL, and transbronchial biopsy. OSHA intends for the
                new provision to make clear that the employer must provide additional
                tests, such as those recommended by NJH, ATS guidelines, and by
                Building Trades National Medical Screening Program, at no cost to the
                employee, if those tests are deemed necessary by the examining
                physician. The agency also believes that explicitly naming the three
                examples of tests that may be appropriate will further emphasize their
                importance to examining physicians at the CBD diagnostic centers.
                 Consistent with OSHA's original intent, those tests are only
                required to be offered if deemed appropriate by the physician at the
                CBD diagnostic center. For example, if lung volume and diffusion tests
                were performed according to ATS criteria as part of the periodic
                medical examination under paragraph (k)(3), and the physician at the
                CBD diagnostic center found them to be of acceptable quality, those
                tests would not have to be repeated as part of a CBD evaluation. The
                addition of paragraph (k)(7)(ii) clarifies that the employer must,
                however, offer any test that the PLHCP deems appropriate. Consistent
                with previous health standards and the meaning of the identical phrase
                in paragraph (k)(3)(ii)(G), OSHA intends the phrase ``deemed
                appropriate'' to mean that additional tests requested by the physician
                must be both related to beryllium exposure and medically necessary,
                based on the findings of the medical examination (see 82 FR at 2709;
                Occupational Exposure to Respirable Crystalline Silica, 81 FR 16286,
                16514 (March 25, 2016)). Because of the technical expertise that a
                facility must have in order to meet the definition of a CBD diagnostic
                center, OSHA is also confident that physicians at those facilities will
                have the expertise to identify additional tests that may be useful to
                diagnose or assess the severity of CBD.
                 New paragraph (k)(7)(ii) also addresses the possibility that a test
                that is deemed appropriate by the examining physician at the CBD
                diagnostic center might not be available at that center. Although
                OSHA's intention has been to require any testing to be provided by the
                same CBD diagnostic center unless the employer and employee agree to a
                different CBD diagnostic center (see 83 FR at 63758), there may be
                cases where the CBD diagnostic center does not perform a type of test
                deemed appropriate by the examining physician. In such a case, OSHA
                wants to ensure that the employee can receive the appropriate test.
                Therefore, OSHA is also including in paragraph (k)(7)(ii) a requirement
                that if any of those tests deemed appropriate by the physician are not
                available at the CBD diagnostic center, they may be performed at
                another location that is mutually agreed upon by the employer and the
                employee. This other location does not need to be a CBD diagnostic
                center as long as it is able to perform tests according to requirements
                under paragraph (k).
                 In summary, final paragraph (k)(7)(i) requires that the employer
                provide an evaluation at no cost to the employee at a CBD diagnostic
                center that is mutually agreed to by the employer and the employee. The
                evaluation must be scheduled within 30 days and must occur within a
                reasonable time of the employer receiving one of the types of
                documentation listed in paragraph (k)(7)(i)(A) or (B). Final paragraph
                (k)(7)(ii) requires that the evaluation include any tests deemed
                appropriate by the examining physician at the CBD diagnostic center,
                such as pulmonary function testing (as outlined by the ATS criteria),
                BAL, and transbronchial biopsy. Paragraph (k)(7)(ii) further requires
                that if any of the tests deemed appropriate by the examining physician
                are not available at the CBD diagnostic center, they may be performed
                at another location that is agreed upon by
                [[Page 53960]]
                the employer and employee and at no cost to the employee.\39\
                ---------------------------------------------------------------------------
                 \39\ OSHA is also making a number of minor, non-substantive
                revisions to the numbering and cross-references in paragraph (k)(7)
                to account for the addition of new paragraph (k)(7)(ii).
                Specifically, OSHA is renumbering current paragraphs (k)(7)(ii)-(v)
                as (k)(7)(iii), (iv), (v), and (vi), and is adding a reference to
                new paragraph (k)(7)(ii) to the newly renumbered paragraph
                (k)(7)(vi).
                 The addition of paragraph (k)(7)(ii) and consequential
                renumbering of current paragraphs (k)(7)(ii)-(v) also affects two
                other cross-references in the standard. Paragraphs (l)(1)(i)(B) and
                (l)(1)(ii) reference paragraphs (k)(7)(ii) and (k)(7)(iii),
                respectively. In this final rule, OSHA is updating those references
                to reflect the renumbering in paragraph (k)(7).
                ---------------------------------------------------------------------------
                Paragraph (m) Communication of Hazards
                 Paragraph (m) of the beryllium standards for construction and
                shipyards sets forth the employer's obligations to comply with OSHA's
                Hazard Communication Standard (HCS) (29 CFR 1910.1200) relative to
                beryllium, and to take additional steps to warn and train employees
                about the hazards of beryllium. Under the HCS, beryllium manufacturers
                and importers are required to evaluate the hazards of beryllium and
                prepare labels and safety data sheets (SDSs) and provide both documents
                to downstream users. Employers whose employees are exposed to beryllium
                in their workplace must develop a hazard communication program and
                ensure that employees are trained on the hazards of beryllium. These
                employers must also ensure that all containers of beryllium are labeled
                and that employees are provided access to the SDSs. In addition to the
                requirements under the HCS, paragraph (m)(1)(ii) of the beryllium
                standards specify certain criteria that must be addressed in
                classifying the hazards of beryllium. In the standard for shipyards,
                paragraph (m)(2) requires employers to provide and display warning
                signs with specified wording at each approach to a regulated area.
                Paragraph (m)(3) of the shipyards standard, and paragraph (m)(2) of the
                construction standard, details employers' duties to provide information
                and training to employees.
                 In the 2019 NPRM, OSHA proposed three changes to paragraph (m) of
                the construction and shipyard standards to align with proposed changes
                to other provisions in these standards. First, OSHA proposed to remove
                the paragraph (m) provisions that require specific language for warning
                labels applied to bags and containers of clothing, equipment, and
                materials contaminated with beryllium (paragraph (m)(2) in construction
                and paragraph (m)(3) in shipyards).\40\ This is consistent with OSHA's
                proposal to remove the corresponding requirements to provide such
                warning labels from paragraphs (h)(2)(v) and (j)(3). As explained in
                the 2019 NPRM, and earlier in this Summary and Explanation with regard
                to paragraphs (h)(2)(v) and (j)(3), OSHA proposed to remove the
                requirements in both standards to label PPE removed from the workplace
                for laundering, cleaning, maintenance, or disposal and to label
                beryllium-containing material destined for disposal in accordance with
                the labeling requirements in paragraph (m) of the 2017 final rule. The
                agency proposed these changes to reflect its intent that provisions
                aimed at protecting workers from the effects of dermal contact need not
                apply to materials containing only trace amounts of beryllium--like all
                beryllium-containing material used in abrasive blasting in the
                construction and shipyards industries--in the absence of significant
                airborne exposure. OSHA applied the same rationale to the limited
                welding operations in shipyards, where the agency had evidence that at
                most only trace amounts of particulate beryllium will form (84 FR at
                53906); see also the Summary and Explanation for paragraphs (h) and
                (j). Accordingly, the agency preliminarily determined that labels are
                not necessary to protect employees in the context of trace beryllium in
                construction and shipyards, and, therefore, the provisions of paragraph
                (m) mandating specific language for such labels are likewise
                unnecessary.
                ---------------------------------------------------------------------------
                 \40\ As a result, OSHA proposed to renumber paragraph (m)(4) in
                the shipyards standard (29 CFR 1915.1024) as (m)(3), renumber
                paragraph (m)(3) in the construction standard (29 CFR 1926.1124) as
                (m)(2), and revise the references in paragraph (m)(1)(ii) of both
                standards accordingly.
                ---------------------------------------------------------------------------
                 National Jewish Health (NJH) objected to OSHA's proposal, stating
                that all PPE and waste that is contaminated with or contains beryllium
                should be labeled as such. ``It is not always the case that the
                contamination contains only trace amounts of beryllium. . . . It cannot
                be overlooked that workers in the construction industries may be
                involved in demolition and disassembly of beryllium contaminated
                buildings, machines and materials'' (Document ID 2211, p. 13). NJH
                further noted that DOE beryllium training materials state, ``Laundry
                workers and personnel who are responsible for the cleaning and
                maintenance of respirators have a high potential for being exposed to
                airborne beryllium dust'' (Document ID 2211, p. 13; COMMUNICATING
                HEALTH RISKS WORKING SAFELY WITH BERYLLIUM: Training Reference for
                Beryllium Workers and Managers/Supervisors Facilitator Manual,
                Beryllium Health Risk Communication Task Force, DOE, April 2002,
                https://www.energy.gov/sites/prod/files/2014/09/f18/communicating_0.pdf). AFL-CIO similarly expressed concern that without
                the labeling requirements of the 2017 standard, downstream recipients
                of contaminated PPE and scrap materials generated during renovation or
                demolition of beryllium manufacturing sites would not be informed of
                the potential for airborne beryllium exposure for workers handling
                these items (Document ID 2210, pp. 8-9; 2222, pp. 118-19).
                 AFL-CIO also raised concerns about the removal of labeling
                requirements for construction materials that are contaminated with
                beryllium that are dumped in landfills (Document ID 2244, pp. 3-4).
                AFL-CIO indicated that landfill workers are at risk of exposure to
                airborne dust that may be created by their work activities. Without
                label information on beryllium-containing waste materials sent from
                construction activities, they argue, landfill workers may not don
                appropriate PPE to protect themselves from beryllium exposure while
                performing their work duties. In their comments, NABTU also included
                landfill employees as a group of workers with potential beryllium
                exposure from construction activities (Document ID 2202, p. 4).
                 OSHA has no evidence that laundry or landfill workers who handle
                PPE or materials designated for disposal from construction sites or
                shipyards would engage in tasks that generate airborne exposure of
                concern. First, the agency believes that NJH's reliance on DOE's 2002
                instruction manual is misplaced. The manual is directed specifically to
                DOE facilities; facilities that processed materials containing
                beryllium in more than trace quantities. In fact, for purposes of DOE's
                own beryllium regulations, the agency defines beryllium as any
                insoluble beryllium compound or alloy containing 0.1 percent beryllium
                or greater that may be released as an airborne particulate (10 CFR
                850.3). The DOE manual is therefore not relevant to the construction
                and shipyards context.
                 Furthermore, evidence in the record demonstrates that, with respect
                to materials containing only trace quantities of beryllium, airborne
                dust concentrations must be very high for exposures to approach even
                the action level (AL). For dust containing less than 4 ppm beryllium,
                airborne dust concentrations would have to exceed 25 mg/m3 to reach the
                beryllium AL of 0.1 [mu]g/m\3\. This level of dust would
                [[Page 53961]]
                significantly exceed the OSHA PEL for nuisance dust, or Particulate Not
                Otherwise Classified (PNOC), of 15 mg/m\3\ (see Document ID 2235, p. 2;
                FEA for the 2017 Final Rule, Chapter IV, p. IV-640). OSHA has no reason
                to suspect that residual dust on PPE and other materials from
                construction and shipyards sites is likely to create this level of
                airborne dust from laundry or landfill operations. Therefore, the
                agency has determined that recipients of PPE or waste from these
                worksites are not expected to be exposed at airborne levels of concern
                from re-entrainment of trace beryllium from these materials. And, as
                explained previously, provisions aimed at protecting workers from the
                effects of dermal contact need not apply to materials containing only
                trace amounts of beryllium unless those workers are also exposed to
                significant airborne beryllium.
                 OSHA has retained certain provisions that protect construction and
                shipyard employees whose work activities involve exposures exceeding
                the PEL, such as abrasive blasters, from further airborne exposure via
                re-entrainment of beryllium-containing dust from PPE or other surfaces
                in the workplace. These include requiring the employer to ensure that
                each employee removes personal protective clothing and equipment
                required by this standard at the end of the work shift or at the
                completion of all tasks involving beryllium, whichever comes first
                (paragraph (h)(2)(i)); requiring the employer to ensure that personal
                protective clothing and equipment required by this standard is not
                removed in a manner that disperses beryllium into the air (paragraph
                (h)(2)(ii)); requiring the employer to ensure that all reusable
                personal protective clothing and equipment required by this standard is
                cleaned, laundered, repaired, and replaced as needed to maintain its
                effectiveness (paragraph (h)(3)(i)); requiring the employer to ensure
                that beryllium is not removed from personal protective clothing and
                equipment required by this standard by blowing, shaking or any other
                means that disperses beryllium into the air (paragraph (h)(3)(ii)); and
                requiring the employer to include procedures for removing, cleaning,
                and maintaining personal protective clothing and equipment in
                accordance with paragraph (h) of this standard in their written
                exposure control plan(s) (paragraph (f)(1)(i)(F)).
                 OSHA proposed to remove those provisions which would apply only to
                employees whose work activities do not involve airborne exposure above
                the PEL, for whom potential exposure to re-entrained beryllium from
                materials containing trace amounts is not a significant concern. As
                OSHA explained in the Summary and Explanation for paragraphs (h)(2)(v)
                and (j)(3), this approach is consistent with the general industry
                standard as modified by the DFR, which does not require labeling for
                materials that contain only trace quantities of beryllium and are
                designated for disposal, recycling, or reuse.
                 In the case where construction workers are removing materials from
                a beryllium manufacturing site covered by the general industry
                standard, beryllium-contaminated materials destined for disposal must
                be cleaned and labeled by the host employer pursuant to paragraph
                (j)(3) of the beryllium standard for general industry. Indeed, even
                without the specific requirement in the beryllium standard, OSHA has
                had a long-standing interpretation that the HCS requires upstream
                suppliers to pass on any information they have regarding known
                contaminants of scrap transferred to downstream recipients (see Letter
                to Edward L. Merrigan, from John Miles, Jr., Directorate of Field
                Operations (May 23, 1986), available at https://www.osha.gov/laws-regs/standardinterpretations/1986-05-23).
                 Finally, AFL-CIO quoted a comment previously submitted by
                Washington Group International (WGI) (see Document ID 0324) which
                includes the proposition that ``it is crucial that government/
                industrial buildings be screened for beryllium process operations'' and
                appears to suggest that, similar to DOE facilities, all facilities
                should do air monitoring and wipe sampling and pass this information on
                to future facility users (Document ID 2244, p. 4). It is unclear
                whether AFL-CIO intended their presentation of WGI's quote to suggest
                that all government and industrial buildings should air-monitor and
                sample surfaces for the presence of beryllium. OSHA believes that this
                approach may be appropriate for DOE, which has a limited number of
                sites that are known to have processed beryllium. However, requiring
                all government and industrial sites to do air monitoring and wipe
                sampling would be of little value since the likelihood of finding
                beryllium would be minuscule. Beryllium, unlike lead and asbestos, is
                not found in common building materials or coatings (see Document ID
                2237, pp. 2-3). Therefore unless a manufacturing site has evidence that
                beryllium is present through the review of SDSs, the likelihood that
                workers will encounter materials contaminated with beryllium is low.
                And, as noted above, where construction workers are removing materials
                from a beryllium manufacturing site covered by the general industry
                standard, beryllium-contaminated materials destined for disposal must
                be cleaned and labeled by the host employer pursuant to paragraph
                (j)(3) of the beryllium standard for general industry.
                 Accordingly, OSHA has determined that the previous labeling
                provisions in paragraph (m) (paragraph (m)(2) in construction and
                (m)(3) in shipyards) are not necessary in the construction and
                shipyards contexts and is finalizing the removal of these provisions as
                proposed.
                 OSHA next proposed to revise the provisions of paragraph (m) for
                employee information and training to remove requirements related to
                emergency procedures ((m)(3)(ii)(D) in construction and (m)(4)(ii)(D)
                in shipyards) \41\ and personal hygiene practices ((m)(3)(ii)(E) in
                construction and (m)(4)(ii)(E) in shipyards). These proposed revisions
                correspond with OSHA's proposed removal of emergency procedures and
                personal hygiene practices from the construction and shipyard
                standards. As discussed in the 2019 NPRM and earlier in this Summary
                and Explanation, OSHA proposed to remove references to emergencies in
                the shipyards and construction standards because OSHA expects that any
                emergency in these industries (such as a release resulting from a
                failure of the blasting control equipment, a spill of the abrasive
                blasting media, or the failure of the ventilation system for welding
                operations in shipyards) would occur only during the performance of
                routine tasks already associated with the airborne release of
                beryllium; i.e., during the abrasive blasting or welding process (84 FR
                at 53917; see also the Summary and Explanation for paragraph (g)). As
                such, any uncontrolled release of beryllium in these operations would
                not create exposures that differ from the normal conditions of work and
                workers will already be protected by the other provisions of paragraph
                (g). OSHA also proposed to remove the hygiene provisions of the
                construction and shipyard standards due to overlap with existing OSHA
                standards, the limited operations where beryllium exposure may occur in
                construction and shipyards, and the trace quantities of beryllium
                present in these operations (84 FR at 53920; see also the Summary
                [[Page 53962]]
                and Explanation for paragraph (i)). As with the previously discussed
                labeling requirement, OSHA reasoned that the removal of these
                provisions would render the correlating training requirements
                unnecessary.
                ---------------------------------------------------------------------------
                 \41\ OSHA proposed to renumber the provisions of paragraph
                (m)(3)(ii) in construction and (m)(4)(ii) in shipyards to reflect
                the removal of this paragraph.
                ---------------------------------------------------------------------------
                 In response to OSHA's proposal to remove the hygiene provisions and
                related training requirements from both standards in favor of OSHA's
                general sanitation standards, NJH stated that ``beryllium exposure
                poses a unique hazard for workers.'' As such, NJH argued that employees
                should continue to be trained on beryllium-specific hygiene practices
                (Document ID 2211, p. 13). AFL-CIO objected to the removal of
                requirements on training for both emergency and hygiene provisions,
                though they did not provide any additional explanation of their
                opposition (Document ID 2210, p. 10). As stated above, OSHA proposed to
                remove the training requirements related to emergencies and hygiene
                areas and practices from paragraph (m) because the agency proposed to
                remove the underlying requirements from the regulatory text.
                 With respect to emergencies, OSHA has determined that the
                operations with known beryllium exposure in the construction and
                shipyards sectors do not have emergencies in which exposures differ
                from the normal conditions of work. As such, workers in these
                operations are already protected by other provisions of the beryllium
                standards and emergency-specific provisions are not necessary (see the
                Summary and Explanation for paragraph (g)). OSHA has also determined
                that partial overlap between the hygiene requirements of the beryllium
                standards for construction and shipyards and those of existing OSHA
                standards, combined with the trace quantities of beryllium present in
                these industries, make beryllium-specific hygiene requirements
                unnecessary in the construction and shipyards standards (see the
                Summary and Explanation for paragraph (i)). OSHA is finalizing the
                regulatory text as proposed for these provisions. In light of OSHA's
                decision to remove these requirements, OSHA finds that it is
                unnecessary to maintain the beryllium-specific training requirements
                for these provisions. Accordingly, OSHA is finalizing the removal of
                training provisions on emergency procedures ((m)(3)(ii)(D) in
                construction and (m)(4)(ii)(D) in shipyards) and hygiene areas and
                practices ((m)(3)(ii)(E) in construction and (m)(4)(ii)(E) in
                shipyards), as proposed.
                 OSHA also proposed to revise paragraphs (m)(3)(i) in construction
                and (m)(4)(i) in shipyards--renumbered in the final standards as
                (m)(2)(i) and (m)(3)(i), respectively--to remove dermal contact as a
                trigger for training. The 2017 final standards for general industry,
                construction, and shipyards originally provided for limited training
                for each employee who has, or can reasonably be expected to have,
                airborne exposure to or dermal contact with beryllium. Specifically,
                paragraph (m)(3)(i)(A) in construction and (m)(4)(i)(A) in shipyards
                provided for training for each such employee in accordance with the
                requirements of the HCS (29 CFR 1910.1200(h)), including specific
                information on beryllium as well as any other hazards addressed in the
                workplace hazard communication program.\42\ However, in the 2017 final
                rule, OSHA recognized that beryllium exposure in the construction and
                shipyard industries is narrowly limited to trace quantities contained
                in certain abrasive blasting media and to exposure during some welding
                operations in shipyards (82 FR at 2690; see also the 2017 FEA, Document
                ID 2042, p. III-66). OSHA clarified in the 2018 DFR for general
                industry that it did not intend for provisions aimed at protecting
                workers from the effects of dermal contact to apply in the case of
                materials containing only trace amounts of beryllium (83 FR at 19938).
                Therefore, OSHA preliminarily determined in the 2019 NPRM for
                construction and shipyards that training in accordance with the HCS
                should be provided to each employee who has, or can reasonably be
                expected to have, airborne exposure to beryllium, without regard to
                dermal contact. OSHA noted that both standards already exempt materials
                containing less than 0.1 percent beryllium by weight where the employer
                has objective data demonstrating that employee exposure to beryllium
                will remain below the action level as an 8-hour TWA under any
                foreseeable conditions (See 29 CFR 1926.1124(a)(3) (construction) and
                29 CFR 1915.1024(a)(3) (shipyards)). OSHA reasoned that the HCS
                training requirements in proposed paragraph (m)(2) for construction and
                proposed paragraph (m)(3) for shipyards would continue to apply to all
                workers that are covered under these standards, regardless of the
                potential for dermal contact (84 FR at 53920-21). OSHA did not receive
                any comments on the removal of dermal contact as a trigger for training
                in accordance with the HCS and is therefore finalizing it as proposed.
                ---------------------------------------------------------------------------
                 \42\ Paragraph (m)(3)(ii) in the 2017 construction standard and
                paragraph (m)(4)(ii) in the 2017 shipyard standard required the
                employer to ensure that each employee who is or can reasonably be
                expected to be exposed to airborne beryllium can demonstrate
                knowledge of all nine enumerated categories of information.
                ---------------------------------------------------------------------------
                 OSHA also proposed to revise renumbered paragraphs (m)(2)(ii)(A) in
                the construction standard and (m)(3)(ii)(A) in the shipyards standard
                to remove references to ``airborne exposure'' and ``dermal contact''
                and instead to require training on the health hazards associated with
                ``exposure to beryllium.'' OSHA likewise proposed to revise renumbered
                paragraphs (m)(2)(ii)(D) in the construction standard and (m)(3)(ii)(D)
                in the shipyards standard to require training on measures employees can
                take to protect themselves from ``exposure to beryllium.'' These
                revisions, OSHA explained, would maintain OSHA's intent that training
                must cover both airborne and skin exposure while both resolving an
                inconsistency between the shipyards and construction standards with
                respect to references to dermal contact and simplifying the provisions
                (84 FR at 53921).
                 AFL-CIO commented that ``OSHA should not alter the requirement for
                employers to train workers on the health hazards associated with
                airborne and dermal exposure to beryllium.'' According to the AFL-CIO,
                it is important for a worker to be provided with all potential exposure
                scenarios, including airborne and dermal exposures, so they can
                understand the full risk of exposure (Document ID 2210, p. 10). As the
                agency emphasized in the 2019 NPRM, the phrase ``exposure to
                beryllium'' is intended to encompass both airborne and skin exposure to
                beryllium (84 FR at 53921). Thus, the proposed language maintains the
                requirement to train workers on both airborne and dermal exposures. By
                resolving an inconsistency in the previous standards regarding dermal
                contact, OSHA intends the proposed change to ensure that employers
                include dermal contact when training workers on the specific hazards of
                beryllium.
                 In previously submitted comments, NABTU has expressed concern that
                they do not see a high level of awareness about hazards related to
                beryllium among workers in the construction industry apart from
                abrasive blasters and contract workers for DOE, citing a survey the
                union performed with trainers in the construction industry (Document ID
                2202, Attachment 1, p. 8). OSHA believes that a few factors could
                explain this lack of awareness outside DOE and abrasive blasting.
                First, as explained earlier in this preamble, abrasive blasting is the
                primary source of exposure in the construction industry
                [[Page 53963]]
                and even the agency has been unable to obtain reliable data about any
                additional sources of exposure in the construction industry. This
                suggests that exposures in other contexts, if they occur, are rare (see
                the summary and explanation for paragraph (f)). Second, OSHA notes that
                while DOE has had a specific beryllium standard in place since 1999 (10
                CFR part 850) due to the particular risks of exposure in its
                facilities, OSHA's comprehensive standards were only promulgated in
                2017.
                 OSHA included hazard communication and training provisions in these
                standards specifically to ensure awareness in those industries covered
                by the standards. As employers implement the beryllium standards for
                general industry, construction, and shipyards, the agency expects this
                lack of awareness to dissipate. Furthermore, paragraph (e)(2) of the
                HCS (29 CFR 1910.1200) requires employers who produce, use, or store
                hazardous chemicals at a workplace to ensure that workers have access
                to safety data sheets and to inform workers of any precautionary
                measures needed during ``normal operation conditions or foreseeable
                emergencies.'' These requirements of the HCS further serve to raise
                awareness among potentially exposed workers. OSHA has considered the
                comments in the record and, for the reasons explained above, is
                finalizing the changes to paragraph (m) as proposed.\43\
                ---------------------------------------------------------------------------
                 \43\ OSHA is also removing the heading ``Employee Information''
                from paragraphs (m)(2)(iv) in the construction standard and
                (m)(3)(iv) in the shipyards standard to comply with the Federal
                Register's drafting rules. The requirements of these provisions are
                unchanged.
                ---------------------------------------------------------------------------
                Paragraph (n) Recordkeeping
                 Paragraph (n) of the beryllium standards for construction and
                shipyards requires employers to make and maintain records of air
                monitoring data, objective data, medical surveillance, and training. It
                also requires employers to make all required records available to
                employees, their designated representatives, and the Assistant
                Secretary in accordance with OSHA's records access standard, 29 CFR
                1910.1020. The 2017 final rule required employers to include employees'
                Social Security Numbers (SSNs) in air monitoring data ((n)(1)(ii)(F)),
                medical surveillance ((n)(3)(ii)(A)), and training ((n)(4)(i)) records.
                In the 2019 NPRM, OSHA proposed to revise paragraphs (n)(1)(ii)(F),
                (n)(3)(ii)(A), and (n)(4)(i) of both the construction and shipyards
                standards to remove those requirements (84 FR at 53921). This final
                rule adopts the proposed revisions, eliminating the requirements to
                include employee SSNs in monitoring data, medical surveillance, and
                training records.
                 In the 2015 beryllium NPRM which led to the 2017 final rule, OSHA
                proposed to require inclusion of employee SSNs in records related to
                air monitoring, medical surveillance, and training, as it had done in
                several existing substance-specific health standards (80 FR 47566,
                47806 (August 7, 2015)). In their comments, some stakeholders objected
                to the proposed requirements based on concerns about employee privacy
                and the risk of identity theft (82 FR at 2730). In the 2017 final rule,
                OSHA acknowledged these concerns, but concluded that, due to the
                agency's past consistent practice of requiring an employee's SSN on
                records, any change to such requirements should be comprehensive and
                apply to all OSHA standards, not just the standards for beryllium (82
                FR at 2730).
                 After OSHA published the 2015 beryllium proposal but before issuing
                the 2017 final beryllium rule, OSHA published its Standards Improvement
                Project-Phase IV (SIP-IV) proposed rule (81 FR 68504, 68526-28 (October
                4, 2016)), in which the agency proposed to delete all requirements for
                employers to include employee SSNs in records required by the agency's
                substance-specific standards. Because the beryllium standards had not
                yet been finalized, they were not included in the SIP-IV proposal.
                Accordingly, the 2017 final rule for beryllium included the SSN
                requirements. However, OSHA acknowledged in the preamble that the SIP-
                IV rulemaking was ongoing and stated that it would revisit its decision
                to require employers to include SSNs in beryllium records in light of
                the SIP-IV rulemaking, if appropriate (82 FR at 2730).
                 After promulgating the 2017 final rule, OSHA finalized Phase IV of
                its Standards Improvement Project (SIP-IV), which removed from OSHA
                standards all requirements for employee SSNs in employer records (84 FR
                21416, 21439-40 (May 14, 2019)).\44\ As OSHA explained in the SIP-IV
                final rule, removing requirements for SSNs results in additional
                flexibility for employers and allows employers to develop systems that
                best work for their unique situations (84 FR at 21440). OSHA also
                explained that the change would protect employee privacy and lower the
                risk of identity theft (84 FR at 21439-40). Consistent with the SIP-IV
                final rule, OSHA proposed in the 2019 NPRM to modify the beryllium
                standards for construction and shipyards by removing the requirements
                to include SSNs in the recordkeeping provisions in paragraphs
                (n)(1)(ii)(F) (air monitoring data), (n)(3)(ii)(A) (medical
                surveillance) and (n)(4)(i) (training) (84 FR at 53921).
                ---------------------------------------------------------------------------
                 \44\ Eliminating requirements to include SSNs in records is also
                responsive to a directive from OMB that calls for federal agencies
                to identify and eliminate unnecessary collection and use of SSNs in
                agency systems and programs (See Memorandum from Clay Johnson III,
                Deputy Director for Management, Office of Management and Budget, to
                the Heads of Executive Departments and Agencies Regarding
                Safeguarding Against and Responding to the Breach of Personally
                Identifiable Information (M-07-16), May 22, 2007 (available at:
                https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-16.pdf).
                ---------------------------------------------------------------------------
                 Two commenters, the AFL-CIO (Document ID 2210, p. 10) and NJH
                (Document ID 2211, p. 14), expressed general support for the proposed
                removal of the requirements to include employees' SSNs in these three
                sets of records. No commenter opposed the proposed revisions. However,
                after stating their support for the change, NJH noted that ``it is
                important that there is an identifying link between exposure monitoring
                data and medical surveillance data in order to identify areas of
                increased risk'' (Document ID 2211, p. 14).
                 OSHA acknowledges NJH's concern but notes that the beryllium
                standards have never required employers to link their exposure
                monitoring to medical surveillance data in this way. Even so, employers
                remain free to utilize SSNs, or any other unique employee identifier,
                if doing so helps them to identify areas of increased risk. Regardless,
                the agency believes that areas of increased risk will be identifiable
                based on the medical surveillance records alone. Paragraph (k)(6)
                requires that, with the employee's consent, the licensed physician's
                written medical opinion for the employer must include the PLCHP's
                recommendations regarding limitations on the employee's airborne
                exposure to beryllium, referrals to a CBD Diagnostic Center, continued
                medical surveillance, and medical removal. This information will alert
                the employer to possible increased risk of exposure in the processes in
                which that employee works and the need to reevaluate these processes.
                It may also trigger the requirement in paragraph (f)(1)(ii) that the
                employer review and evaluate the effectiveness of its written exposure
                control plan. Therefore, OSHA has determined that the proposed
                revisions to paragraph (n) will not impair the identification of areas
                of increased risk within a worksite or facility.
                 NJH's comment also touches on a related concern regarding the
                removal of requirements to record workers' SSNs in exposure monitoring
                and medical
                [[Page 53964]]
                records. As OSHA explained in the SIP-IV NPRM, the agency originally
                required the collection of employee SSNs in its standards because SSNs
                are assigned at birth and do not change over time. SSNs are therefore
                useful for research that tracks employees over time, as is done in some
                epidemiological studies of workplace populations (81 FR at 68527).
                While OSHA acknowledged the usefulness of SSNs for such research, the
                agency further noted that other tracking methods have emerged that
                allow researchers to conduct these studies without the use of SSNs.
                OSHA stated that due to the seriousness of the threat of identity theft
                and the availability of other methods for tracking employees for
                research purposes, it was appropriate to reexamine the SSN collection
                requirements in its standards (81 FR at 68527). Weighing these
                considerations in the SIP-IV final rule, OSHA determined that it was
                appropriate to remove from OSHA standards all requirements for employee
                SSNs in employer records (84 FR at 21439-40). OSHA reaffirms its
                conclusions on this issue here.
                 Accordingly, OSHA is finalizing the proposed changes to paragraph
                (n) in this final rule, which will align the beryllium standards for
                construction and shipyards with OSHA's other substance-specific
                standards by removing the requirements to include employees' SSNs in
                air monitoring data ((n)(1)(ii)(F)), medical surveillance
                ((n)(3)((ii)(A)), and training ((n)(4)(i)) records. OSHA expects that
                compliance with paragraph (n) as revised will be straightforward for
                construction and shipyard employers who already comply with other OSHA
                standards that no longer contain requirements to include employee SSNs
                in records. Lastly, OSHA notes, as it did in the SIP-IV final rule,
                that by removing the requirements to include SSNs in records, OSHA is
                not requiring employers to delete SSNs from existing records or
                prohibiting employers from using SSNs in records if they wish to do so
                (see 84 FR at 21439-40).
                IV. Final Economic Analysis
                A. Introduction
                 This Final Economic Analysis (FEA) addresses issues related to the
                profile of affected application groups, establishments, and employees;
                and the cost savings and the benefits of OSHA's rule to modify several
                construction and shipyard ancillary provisions. This rule makes no
                changes to the 2017 final rule's TWA PEL and STEL for the shipyard and
                construction industries. Relative to the estimated costs in the Final
                Economic Analysis (2017 FEA) in support of the January 9, 2017,
                beryllium final rule (Document ID 2042), this FEA would lead to total
                annualized cost savings of $2.5 million in 2019 dollars at a 3 percent
                discount rate over 10 years; and total annualized cost savings of $2.6
                million in 2019 dollars at a discount rate of 7 percent over 10 years.
                When the Department uses a perpetual time horizon, the annualized cost
                savings of the rule would be $2.3 million in 2016 dollars at a 7
                percent discount rate.
                 The rule is not a ``significant regulatory action'' under Executive
                Order 12866 or the Unfunded Mandates Reform Act of 1995 (UMRA) (2
                U.S.C. 1501 et seq.); nor is it a ``major rule'' under the
                Congressional Review Act (5 U.S.C. 801 et seq.). Neither the benefits
                nor the costs of this rule exceed $100 million. In addition, they do
                not meet any of the other criteria specified by the UMRA for a
                significant regulatory action or the Congressional Review Act for a
                major rule.
                 This final rule makes several changes to the beryllium standards
                for construction and shipyards. These changes are designed to
                accomplish three goals: (1) To more appropriately tailor the
                requirements of the construction and shipyards standards to the
                particular exposures in these industries in light of partial overlap
                between the beryllium standards' requirements and other OSHA standards;
                (2) to more closely align the shipyards and construction standards to
                the general industry beryllium standard with respect to the medical
                definitions and medical surveillance requirements, where appropriate;
                and (3) to clarify certain requirements with respect to materials
                containing only trace amounts of beryllium.
                 This FEA provides OSHA's assessment of how this rule will affect
                the costs and benefits of complying with the beryllium standards for
                construction and shipyards, including costs adjustments to reflect
                changes in exposure rates and baseline compliance rates. All costs are
                estimated in 2019 dollars. Costs reported in 2019 dollars were applied
                directly in this FEA; wage data were updated to 2019 dollars using BLS
                data (BLS, 2020a); \45\ and all other costs reported for years earlier
                than 2019 were updated to 2019 dollars using the GDP implicit price
                deflator (BEA, 2020).\46\
                ---------------------------------------------------------------------------
                 \45\ Bureau of Labor Statistics, Occupational Employment
                Statistics Survey--May 2019 (Released March 31, 2020) (Document ID
                2248), available at http://www.bls.gov/oes/tables.htm (Accessed July
                9, 2020) (BLS, 2020a).
                 \46\ Bureau of Economic Analysis, Table 1.1.9. Implicit Price
                Deflators for Gross Domestic Product (Document ID 2246), available
                at https://apps.bea.gov/iTable/iTable.cfm?reqid=19&step=3&isuri=1&nipa_table_list=13 (Accessed July
                9, 2020) (BEA, 2020).
                ---------------------------------------------------------------------------
                 This introduction to the FEA is followed by:
                 Section B: Profile of Affected Application Groups,
                Establishments, and Employees
                 Section C: Technological Feasibility Summary
                 Section D: Cost Savings
                 Section E: Benefits
                B. Profile of Affected Application Groups, Establishments, and
                Employees
                Introduction
                 In this section, OSHA presents the profile of industries affected
                by this final rule. The profile data in this section are drawn from the
                industry profiles in Chapter III and exposure profiles and data in
                Chapter IV of the 2017 FEA (Document ID 2042); the PEA for the June 27,
                2017 beryllium proposal (2017 PEA) (82 FR 29189-216); and the PEA for
                the October 8, 2019 beryllium proposal (2019 PEA) (82 FR at 53922-45).
                Much of the analysis here is unchanged from the 2019 PEA because, as
                will be explained below, the agency received no new information or data
                during the comment period that would alter the agency's analysis.
                 In the 2017 FEA, OSHA first identified the North American
                Industrial Classification System (NAICS) industries, both in the
                shipyard and construction sectors, with potential worker exposure to
                beryllium. Next, OSHA provided statistical information on the affected
                industries, including the number of affected entities and
                establishments, the number of workers whose exposure to beryllium could
                result in disease or death (``at-risk workers''), and the average
                revenue and profits for affected entities and establishments by six-
                digit NAICS industry.\47\ The agency provided this information for each
                affected industry as
                [[Page 53965]]
                a whole, as well as for small entities, as defined by the Small
                Business Administration (SBA), and ``very small'' entities, defined by
                OSHA as those with fewer than 20 employees, in each affected industry
                (U.S. Census Bureau, 2014). For each industry sector identified, the
                agency described the uses of beryllium and estimated the number of
                establishments and employees that would be affected by the beryllium
                standards. Employee exposure to beryllium can also occur as a result of
                certain processes (such as welding) that are found in many industries.
                This analysis will use the term ``application group'' to refer to a
                cross-industry group with a common process.
                ---------------------------------------------------------------------------
                 \47\ The Census Bureau defines an establishment as a single
                physical location at which business is conducted or services or
                industrial operations are performed. The Census Bureau defines a
                business firm or entity as a business organization consisting of one
                or more domestic establishments in the same state and industry that
                are specified under common ownership or control. The firm and the
                establishment are the same for single-establishment firms. For each
                multi-establishment firm, establishments in the same industry within
                a state will be counted as one firm; the firm employment and annual
                payroll are summed from the associated establishments. (U.S. Census
                Bureau, Statistics of U.S. Businesses, Glossary, 2017, https://www.census.gov/programs-surveys/susb/about/glossary.html (Accessed
                March 3, 2017)).
                ---------------------------------------------------------------------------
                 In Chapter III of the 2017 FEA, OSHA described each application
                group; identified the processes and occupations with beryllium
                exposure, including available sampling exposure measurements; and
                explained how OSHA estimated the number of establishments working with
                beryllium and the number of employees exposed to beryllium. Those
                estimates and the exposure profiles for abrasive blasting in
                construction and shipyards, and welding in shipyards,\48\ are presented
                in this section, along with a brief description of the application
                groups and an explanation of the derivation of the revised exposure
                profiles. For additional information about these data and the
                application groups, please see Chapter III of the 2017 FEA.\49\
                Finally, this section discusses wage data, the hire rate, and current
                industry practices.
                ---------------------------------------------------------------------------
                 \48\ The exposure profile used for welding in shipyards in this
                FEA, and in the 2017 PEA, differs from the exposure profile used in
                Chapter III the 2017 FEA because OSHA is now using maritime-specific
                data from the appendices to Chapter IV of the 2017 FEA. See 82 FR
                29195.
                 \49\ OSHA contractor Eastern Research Group (ERG) provided
                support for the 2017 FEA.
                ---------------------------------------------------------------------------
                Affected Application Groups
                 OSHA's 2017 FEA identified one affected application group in the
                construction sector and two application groups in the shipyard sector
                with potential beryllium exposure. Both the shipyard and construction
                sectors have affected employees in the abrasive blasting application
                group, and the shipyard sector has affected employees in the welding
                application group. OSHA's understanding of these affected application
                groups has not changed. For a full description of these application
                groups, see Chapter III of the FEA for the 2017 final rule (Document ID
                2042) and section V.B. of the 2017 construction and shipyards NPRM, the
                Profile of Affected Application Groups, Establishments, and Employees
                within the PEA (82 FR at 29189-29200).
                 As discussed throughout this preamble, several commenters to the
                October 9, 2019 NPRM took issue with OSHA's focus on abrasive blasters
                and welders, arguing that construction and shipyards workers in various
                other jobs may be exposed to beryllium. For example, commenters argued
                that workers may be exposed to beryllium during the dressing of
                beryllium-containing non-sparking tools (Document ID 2208, p. 6; 2211,
                p. 7; 2222, Tr. 17-19) and during decommissioning, demolition, or
                renovation work at facilities that process beryllium (Document ID 2213,
                p. 3; 2239, p. 1; 2222, Tr. 84-85). However, as explained in the
                Summary and Explanation for paragraph (f), these commenters did not
                provide, nor does the record contain, sufficient data for the agency to
                characterize exposures in these or any other application groups outside
                of abrasive blasting and welding. The agency suspects that if
                additional exposures do occur they are rare, and would not
                significantly impact the agency's economic analysis.
                 Other commenters, including the CISC and NDA, suggested that the
                agency has underestimated the cost of complying with the beryllium
                standard for construction because, they contend, all construction
                employers must perform exposure assessment to determine whether
                beryllium is present at their worksite in trace amounts (Document ID
                2203, p. 16; 2205, p. 2). However, as discussed in the Summary and
                Explanation, apart from certain abrasive blasting media, those
                materials at the typical construction site that the agency has
                identified as containing beryllium in trace amounts (i.e., rock, soil,
                concrete, and brick) are not likely to release airborne beryllium above
                the action level under foreseeable conditions and therefore do not
                typically trigger the requirements of the standard. Further, for any
                additional materials containing comparably low levels of beryllium, an
                employer may rely on objective data that employees will not be exposed
                above the PEL for total airborne dust to qualify for the exemption
                under paragraph (a)(3). Hence the agency does not expect any workplace
                assessments to be needed for construction sites using typical
                construction materials containing trace amounts of beryllium.
                 Accordingly, the application groups for this FEA remain the same as
                those identified in the 2019 PEA; that is, abrasive blasting in
                construction and shipyards and certain welding operations in shipyards.
                Exposure Profile
                 This section summarizes the data from the 2017 FEA (see Document ID
                2042, FEA Chapter IV--Technological Feasibility). It is presented here
                for informational purposes only. The information in this section is
                drawn entirely from the 2017 FEA except for updated revenue data.
                Abrasive Blasting in Construction and Shipyards
                 The primary abrasive blasting job categories include the abrasive
                blasting operator (blaster) and pot tender (blaster's helper or
                assistant) during open blasting projects. Support personnel such as pot
                tenders or abrasive media cleanup workers might also be employed to
                clean up (e.g., by vacuuming or sweeping) and recycle spent abrasive
                and to set up, dismantle, and move containment systems and supplies
                (NIOSH, 1976, Document ID 0779; NIOSH, 1993, 0777; NIOSH, 1995, 0773;
                NIOSH, 2007, 0770; Flynn and Susi, 2004, 1608; Meeker et al., 2005,
                0699).
                 Section 15 of Chapter IV of the 2017 FEA included a detailed
                discussion of exposure data and analysis for the development of the
                exposure profile for workers in abrasive blasting operations. Because
                OSHA addressed general industry abrasive blasting operations in other
                general industry sections where appropriate, such as in the nonferrous
                foundries industry, the exposure profile in Section 15 addressed only
                exposure data from construction and shipyard tasks. The exposure
                profile for abrasive blasters, pot tenders/helpers, and abrasive media
                cleanup workers was based on two National Institute for Occupational
                Safety and Health (NIOSH) evaluations of beryllium exposure from
                abrasive blasting with coal slag, unpublished sampling results for
                abrasive blasting operations from four U.S. shipyards, and data
                submitted by the U.S. Navy (NIOSH, 1983, Document ID 0696; NIOSH, 2007,
                0770; OSHA, 2005, 1166; U.S. Navy, 2003, 0145).
                Welding in Shipyards
                 Similar to the profile for abrasive blasting activities, OSHA used
                exposure data from the 2017 FEA to develop the exposure profile for
                welding in shipyards. OSHA used the exposure data from Chapter IV-10
                Appendices 2 and 3 and combined the aluminum base metal and non-
                aluminum or unknown base material data. OSHA removed shorter duration
                samples that appeared in Appendix 3 of FEA chapter IV-10. Seven
                maritime welding samples from
                [[Page 53966]]
                Appendix 3, Table IV.61 with sampling durations of 240 minutes or
                greater were used in this profile to represent the 8-hour TWA samples.
                 Compared to the 2017 FEA, this caused a change in the exposure
                profile for welders in shipyards. The exposure profile for welding in
                shipyards is based on data presented in Appendices 2 and 3 of Sections
                10.6 and 10.7 of Chapter IV, and again is more fully summarized in
                Section IV of the 2017 PEA. Those data measure exposures of shipyard-
                based welders, and OSHA has determined that it is a more suitable data
                set on which to base the exposure profile of welders in shipyards than
                the data used in the 2017 FEA, which were based on general industry
                welding exposures.
                 Tables IV-1 and IV-2 summarize, from the exposure profiles, the
                number of workers at risk of beryllium exposure and the distribution of
                8-hour TWA beryllium exposures by affected application group and job
                category. Exposures are grouped into ranges (e.g., >0.05 [mu]g/m\3\ and
                0.05 to 0.1 to 0.2 to 0.25 to 0.5 to 1.0 to 2.0 (%) Total (%)
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Construction
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Abrasive Blaster...................................... 15.2 15.2 25.7 2.5 12.4 4.7 5.4 18.9 100.0
                Pot Tender............................................ 28.1 28.1 43.8 0.0 0.0 0.0 0.0 0.0 100.0
                Cleanup............................................... 33.3 33.3 26.7 0.0 0.0 0.0 3.3 3.3 100.0
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Abrasive Blaster...................................... 15.2 15.2 25.7 2.5 12.4 4.7 5.4 18.9 100.0
                Pot Tender............................................ 28.1 28.1 43.8 0.0 0.0 0.0 0.0 0.0 100.0
                Cleanup............................................... 33.3 33.3 26.7 0.0 0.0 0.0 3.3 3.3 100.0
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Welding--Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Welder................................................ 47.4 47.4 1.5 0.0 0.0 3.0 0.7 0.0 100.0
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Note: Data may not sum to totals due to rounding.
                [a] The lowest exposure range in OSHA's technological feasibility analysis is 0.05 to 0.1 to 0.2 to 0.25 to 0.5 to 1.0 to 2.0 Total
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Construction
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Abrasive Blaster...................................... 511 511 863 83 416 159 182 636 3,360
                Pot Tender............................................ 945 945 1,470 0 0 0 0 0 3,360
                Cleanup............................................... 560 560 448 0 0 0 56 56 1,680
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Abrasive Blaster...................................... 186 186 314 30 152 58 66 232 1,224
                Pot Tender............................................ 344 344 536 0 0 0 0 0 1,224
                Cleanup............................................... 204 204 163 0 0 0 20 20 612
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Welding--Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Welder................................................ 13 13 1 0 0 1 1 0 26
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Total
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Construction Subtotal................................. 2,016 2,016 2,781 83 416 159 238 692 8,400
                Maritime Subtotal..................................... 747 747 1,013 30 152 59 87 252 3,086
                Total, All Industries................................. 2,763 2,763 3,794 114 568 218 324 944 11,486
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Note: Data may not sum to totals due to rounding. Figures with actual values representing less than one person have been rounded up to one (person).
                * Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
                ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
                Source: Table V-8, 2017 beryllium proposal (82 FR at 29196).
                [[Page 53967]]
                 Table IV-3--Number of Workers Exposed to Beryllium by Affected Industry and Exposure Level (mg/m\3\)
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Exposure Level ([micro]g/m\3\)
                 Application Group/NAICS Industry -------------------------------------------------------------------------------------------------------------------------------------
                 0 to 0.05 to 0.1 to 0.2 to 0.25 to 0.5 to 1.0 to 2.0 Total
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Construction
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                238320............................. Painting and Wall 1,046 1,046 1,443 43 216 82 123 359 4,360
                 Covering Contractors.
                238990............................. All Other Specialty 970 970 1,337 40 200 76 114 333 4,040
                 Trade Contractors.
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                336611a............................ Ship Building and 734 734 1,013 30 152 58 87 252 3,060
                 Repairing.
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Welding in Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                336611b............................ Ship Building and 13 13 1 0 0 1 1 0 26
                 Repairing.
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Total
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Construction Subtotal..................................... 2,016 2,016 2,781 83 416 159 238 692 8,400
                Maritime Subtotal......................................... 747 747 1,013 30 152 59 87 252 3,086
                Total, All Industries..................................... 2,763 2,763 3,794 114 568 218 324 944 11,486
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Note: Data may not sum to totals due to rounding. Figures with actual values representing less than one person have been rounded up to one (person).
                * Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
                ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
                Source: Table V-9, 2017 beryllium proposal (82 FR at 29196).
                Summary of Affected Establishments and Employers
                 As shown in Table IV-4, OSHA estimates that a total of 11,486
                workers in 2,796 establishments will be affected by this rule. Also
                shown are the estimated annual revenues for these entities. Table IV-5
                presents the agency's estimate of affected entities defined as small by
                SBA, and Table IV-6 presents OSHA's estimate of affected establishments
                and employees by NAICS industries for the subset of small entities with
                fewer than 20 employees.\50\ For the tables showing the characteristics
                of small and very small entities, OSHA generally assumed that
                beryllium-using small entities and very small entities would be the
                same proportion of overall small and very small entities as the
                proportion of beryllium-using entities to all entities as a whole in a
                NAICS industry. OSHA in the 2017 PEA and subsequent rulemaking analyses
                has requested public comment on the profile data presented in Tables
                IV-4, IV-5, and IV-6, and has received none.
                ---------------------------------------------------------------------------
                 \50\ Tables IV-5 and IV-6 indicate that small entities affected
                by the proposed rule contain 2,714 affected establishments
                affiliated with entities that are small by SBA standards and 2,365
                affected establishments affiliated with entities that employ fewer
                than 20 employees. However, the small and very small entity figures
                in Tables IV-5 and IV-6 were not used to prepare the cost savings
                estimates in Section D of this FEA. For costing purposes in Section
                D, OSHA included small establishments owned by larger entities
                versus the figures in Tables IV-5 and IV-6 because such
                establishments do not qualify as ``small entities'' for the purposes
                of a Regulatory Flexibility Analysis. To see the difference in the
                number of affected establishments by size for costing purposes,
                consider the example of a ``large entity'' with 500 employees,
                consisting of 50 ten-employee establishments. In Section B., each of
                these 50 establishments would be excluded from Tables IV-5 and IV-6
                because they are part of a ``large entity''; in Section D., where
                all establishments are included because there is no filter for
                entity size, each would be considered a small establishment. Thus,
                for purposes of Section D., there are 2,399 affected establishments
                with fewer than 20 employees, 369 affected establishments with
                between 20 and 499 employees, and 28 establishments with more than
                500 employees. Census (2015) Statistics of US Businesses data
                suggest there are also a total of 3,464 establishments affiliated
                with entities in construction and shipyards employing between 20 and
                499 employees, of which approximately 157 would be affected by the
                rule.
                 Table IV-4--Characteristics of Industries Affected by OSHA's Beryllium Standards--All Entities
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Total
                 Total Total Total Affected Affected Affected revenues Revenues/ Revenues/
                 NAICS code Industry entities establishments employees entities establishments employees ($1,000) entity [a] establishment [a]
                 [a] [a] [a] [b] [b] [b] [a]
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Construction
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                238320..................... Painting and Wall Covering 31,317 31,376 163,073 1,088 1,090 4,360 $21,099,458 $673,738 $672,471
                 Contractors.
                238990..................... All Other Specialty Trade 28,734 29,072 193,631 998 1,010 4,040 42,420,391 1,476,313 1,459,149
                 Contractors.
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                336611a.................... Ship Building and Repairing. 604 689 108,311 604 689 3,060 28,142,463 46,593,482 40,845,374
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Welding in Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                336611b.................... Ship Building and Repairing. 604 689 108,311 6 7 26 28,142,463 46,593,482 40,845,374
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Total
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Construction Subtotal.................................... 60,051 60,448 356,704 2,086 2,100 8,400 63,519,849 1,057,765 1,050,818
                Maritime Subtotal........................................ 604 689 108,311 610 696 3,086 28,142,463 46,593,482 40,845,374
                Total, All Industries.................................... 60,655 61,137 465,015 2,696 2,796 11,486 91,662,312 1,511,208 1,499,294
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                [a] Data may not sum to totals due to rounding. [a] US Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034).
                [[Page 53968]]
                
                [b] OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the
                 number of affected employees.
                Source: Table V-4, 2017 beryllium proposal (82 FR at 29192), with updated revenues as shown in Document ID 2250.
                 Table IV-5--Characteristics of Construction and Shipyard Industries Affected by OSHA's Beryllium Standards--Small Entities
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 SBA small Affected Affected Total
                 business Small Establishments Small small Affected small employees revenues for Revenues/ Revenues/
                 NAICS code Industry classification business for small entity business establishments for small small small small
                 (employees) entities entities [b] employees entities [c] entities entities entity establishment
                 [a] [b] [b] [c] [c] ($1,000) [b]
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Construction
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                238320.................. Painting and Wall 100 31,221 31,243 133,864 1,085 1,085 3,579 $17,822,841 $570,861 $570,459
                 Covering Contractors
                238990.................. All Other Specialty 100 28,537 28,605 143,112 991 994 2,986 32,076,205 1,124,022 1,121,350
                 Trade Contractors
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                336611a................. Ship Building and 1,250 585 629 27,170 585 629 768 6,507,836 11,124,507 10,346,322
                 Repairing
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Welding in Shipyards
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                336611b................. Ship Building and 1,250 585 629 27,170 6 6 7 6,507,836 11,124,507 10,346,322
                 Repairing
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Total
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Construction Subtotal............................. .............. 59,758 59,848 276,976 2,076 2,079 6,565 49,899,046 835,019 833,763
                Maritime Subtotal................................. .............. 585 629 27,170 591 635 775 6,507,836 11,124,507 10,346,322
                Total, All Industries............................. .............. 60,343 60,477 304,146 2,667 2,714 7,340 56,406,882 934,771 932,700
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Data may not sum to totals due to rounding.
                [a] SBA Size Standards, 2016.
                [b] US Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034).
                [c] OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the
                 number of affected employees.
                Source: Table V-5, 2017 beryllium proposal (82 FR at 29194), with updated revenues as shown in Document ID 2250.
                 Table IV-6--Characteristics of Industries Affected by OSHA's Beryllium Standards--Entities With Fewer Than 20 Employees
                ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Affected
                 Employees Affected Affected employees Total Revenue per
                 Entities Establishments for entities establishments for revenues for Revenues estab. for
                 Application group NAICS Industry with https://www.bls.gov/news.release/archives/ecec_06182019.htm) (BLS, 2020c); \51\
                loaded hourly wages by application group and SOC are shown in Table IV-
                7. OSHA also used the new hire rate for manufacturing of 31.8 percent
                (BLS, Job Openings and Labor Turnover Survey (JOLTS), 2019 (Document ID
                2247), available at http://www.bls.gov/jlt/data.htm) (BLS, 2020b).
                Finally, due to changes in data availability in the most recent OES,
                the occupation for a PLCHP, which in the PEA used Family and General
                Physicians (SOC 29-1062), has been changed to Physicians, All Other;
                and Ophthalmologists, Except Pediatric (SOC 29-1228).
                ---------------------------------------------------------------------------
                 \51\ A fringe markup (loading factor) of 45.8 percent was
                calculated in the following way. Employer costs for employee
                compensation for civilian workers averaged $36.77 per hour worked in
                March 2019. Wages and salaries averaged $25.22 per hour worked and
                accounted for 68.6 percent of these costs, while benefits averaged
                $11.55 and accounted for the remaining 31.41 percent. Therefore, the
                fringe markup (loading factor) is $11.55/$25.22, or 45.8 percent.
                Total employer compensation costs for private industry workers
                averaged $34.49 per hour worked in March 2019 (BLS, 2020c, Document
                ID 2249).
                ---------------------------------------------------------------------------
                Baseline Industry Practices and Existing Regulatory Requirements
                (``Current Compliance'') on Hazard Controls and Ancillary Provisions
                 Table IV-8 reflects OSHA's estimate of baseline industry compliance
                rates, by application group and job category, for each of the ancillary
                provisions in the construction and shipyards standards. See Chapter III
                of the 2017 FEA (Document ID 2042) for additional discussion of the
                baseline compliance rates for each provision, which were estimated
                based on site visits, industry contacts, published literature, and the
                Final Report of the Small Business Advocacy Review (SBAR) Panel (SBAR,
                2008, Document ID 0345). Note that the compliance rate is typically the
                same for all jobs in a given sector.
                 In the 2017 FEA, OSHA estimated that abrasive blasters in
                construction and shipyards had a 75 percent compliance rate with the
                PPE requirements in the beryllium standards. The 2017 PEA revised those
                estimates to 100 percent compliance based on the belief that 29 CFR
                1926.57(f)(5)(v) already required abrasive blasting operators to wear
                full PPE, including respirators, gloves, safety shoes, and eye
                protection; that 29 CFR 1915.34(c)(3) required full PPE for abrasive
                blaster operators performing mechanical paint removal in shipyards.
                Some commenters disagreed with this estimate for abrasive blasting
                operations. NABTU noted that ``with the exception of abrasive blasting
                operators wearing type CE respirators, construction workers' use of PPE
                during abrasive blasting operations is extremely limited.'' (Document
                ID 2129, p. 11). BHSC also expressed concern about the degree of
                protection afforded by the other OSHA standards to workers near
                abrasive blasting operations, stating that the estimated 100 percent
                PPE use for those workers ``does not have supporting evidence of
                consistent and standard use across pot tenders and cleanup activities
                supporting abrasive blasting'' (Document ID 2118, p. 5).
                 While the agency acknowledges these comments claiming that its
                revised 100 percent compliance estimate was too high for abrasive
                blasting operations, OSHA is also removing dermal contact with
                beryllium as a trigger for PPE requirements. This clarifies and limits
                the activities that would trigger PPE requirements under this rule,
                making a higher baseline compliance estimate more appropriate. The
                agency has determined that a better estimate for PPE for abrasive
                blasting operations is in between the two previous estimates of 75
                percent and 100 percent. OSHA estimates 90 percent compliance for PPE
                for areas where exposures exceed, or can reasonably be expected to
                exceed, the TWA PEL or STEL, which are the only areas in which the
                standards would require PPE under the revisions.
                 For welders in shipyards, OSHA estimated a 0 percent compliance
                rate in the 2017 FEA and revised that estimate to 100 percent
                compliance in the 2017 PEA because gloves are required under 29 CFR
                1915.157(a) to protect workers from hazards faced by welders, such as
                thermal burns (82 FR at 29197-201). The agency received no comments on
                the compliance rates for welders either from the 2017 PEA or from the
                2019 PEA. Hence, OSHA continues to estimate a 100 percent PPE
                compliance rate for welders in shipyards in areas where exposures can
                exceed the TWA PEL or STEL because of the overlap with 29 CFR
                1915.157(a).\52\
                ---------------------------------------------------------------------------
                 \52\ In fact, the 0 percent baseline compliance rate for PPE in
                shipyard welding in the 2017 FEA was simply a mistake insofar as
                baseline compliance rate for PPE for welding in general industry was
                100 percent in the same document. 2017 FEA, Ch. III, p. III-188.
                ---------------------------------------------------------------------------
                 In the 2017 FEA, for the three occupational groups involved in
                abrasive blasting (operators, pot-tenders, and clean-up workers), OSHA
                estimated a 75 percent compliance rate with respirators that met the
                beryllium standards' requirements. In the 2017 PEA (82 FR at 29197),
                operators, but not pot tenders or clean-up workers, were revised to 100
                percent compliance due to the strict existing standards for operators
                (see Sec. Sec. 1926.57(f) and 1915.34(c)(3)(iv)). This FEA continues
                to use these baseline compliance estimates of 100 percent for operators
                and 75 percent for pot tenders and clean-up workers.
                 For welders in shipyards, the 2017 FEA estimated 0 percent
                compliance with proper respirator use and a 25 percent compliance rate
                with the requirement to establish a respiratory protection program.
                OSHA revised this estimate to 100 percent in the 2019 PEA (84 FR at
                53927) because several other standards address respiratory protection
                for welders in shipyards, including the Confined and Enclosed Spaces
                and Other Dangerous Atmospheres in Shipyard Employment standards (29
                CFR 1915.12(c)(4)(ii)), the Welding, Cutting, and Heating standards for
                shipyards (29 CFR 1915.51(d)(2)(iv)), and the general Respiratory
                Protection standards (29 CFR 1910.134, 1915.154). The agency received
                no new comment on these revisions to the compliance rates from either
                the 2017 PEA or the 2019 PEA and will use the same estimates in this
                FEA.
                 The baseline compliance rates for the housekeeping provisions in
                the 2017 FEA were 0 percent for welders in shipyards and 75 percent for
                blasters, pot tenders, and clean-up workers in abrasive blasting in
                both construction and shipyards. In the 2017 PEA, OSHA reviewed
                existing housekeeping requirements and updated the estimate from 75
                percent to 100 percent for abrasive blasting operations because some
                housekeeping is required by existing standards for abrasive blasting
                operations in construction and shipyards. The Summary and Explanation
                for housekeeping for this rule discusses the agency's finding that
                existing standards cover general housekeeping requirements for
                blasters, pot tenders, and clean-up workers, though these other
                standards allow some cleaning methods that the beryllium standards, and
                the revisions, limit, like dry sweeping or brushing and compressed air.
                Under this rule, housekeeping requirements would no longer apply when
                dust from trace amounts of beryllium could not be expected to cause
                airborne exposures above the TWA PEL and STEL. Hence, these
                requirements will only affect areas where workers are exposed above the
                TWA PEL or STEL in the exposure profile. While the revisions will limit
                the methods that employers may use to clean up beryllium, OSHA
                estimates that cleaning methods that do not disperse beryllium into the
                air take
                [[Page 53970]]
                approximately the same amount of time as cleaning methods already in
                use. The agency received no comment on this revision to the compliance
                rate from either the 2017 PEA or the 2019 PEA. For abrasive blasting
                operations, the agency therefore maintains from the 2017 PEA its 100
                percent compliance rate for housekeeping for abrasive blasting
                operations.
                 For welders in shipyards, OSHA estimated a 0 percent compliance
                rate for housekeeping in both the 2017 FEA and the 2017 PEA. As
                explained in the Summary and Explanation, OSHA has reason to believe
                that skin or surface contamination is not an exposure source of concern
                in welding in shipyards. The revisions would also limit the
                circumstances in which housekeeping is required. OSHA therefore
                estimates that in welding in shipyards, employers will not have to
                engage in additional housekeeping to comply with the revisions and is
                maintaining its 2019 PEA baseline compliance estimate for housekeeping
                to 100 percent for welding in shipyards.
                 In the 2017 PEA, OSHA treated the compliance rates for vacuums,
                bags, and labels separately from the labor costs of housekeeping. OSHA
                estimated a 0 percent compliance rate for all industries in
                construction and shipyards for vacuums, bags, and labels because it
                believed the cost of such equipment was not covered by other standards.
                In this FEA, as in the 2019 PEA, OSHA is setting the compliance rates
                under housekeeping for vacuums, bags, and labels to 100 percent as this
                rule removes those requirements from the standard.
                 The baseline compliance rates for the hygiene areas provisions in
                the 2017 FEA were 0 percent for welders in shipyards and 75 percent for
                blasters, pot tenders, and clean-up workers in abrasive blasting in
                both construction and shipyards. As explained in the Summary and
                Explanation section of this preamble, OSHA is removing paragraph (i),
                hygiene areas, from the construction and shipyards standards. The
                standards as modified by this final rule, as in the NPRM, therefore no
                longer require employers to comply with any hygiene-related provisions,
                and the baseline compliance is revised to 100 percent to demonstrate
                that there will be no cost associated with hygiene areas under the
                rule.
                 The baseline compliance rate for each of the remaining provisions
                was unchanged from the 2017 FEA to the 2017 PEA and remains unchanged
                in this FEA.
                 As a final point on baseline industry practices, OSHA acknowledges
                the possibility of a future decline in the use of coal slag abrasive
                materials but did not receive new evidence on this issue. To the extent
                that coal slag abrasives are being replaced, for reasons unrelated to
                the implementation of this standard, by other blasting materials that
                do not have the potential for beryllium exposures of concern, the costs
                and benefits of compliance with the TWA PEL and STEL for abrasive
                blasting operations would also decrease.
                 Table IV-7--Loaded Hourly Wages for Occupations (Jobs) Exposed to Beryllium and Affected by OSHA's Beryllium Standard
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 Fringe Loaded
                 markup hourly (or
                 Provision in the standard Job NAICS SOC [a] Occupation Median percentage, daily [d])
                 hourly wage total [b] wage
                
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                Monitoring [c]...................... Industrial Hygienist N/A N/A N/A.................... N/A N/A $175.34
                 Consultant.
                Monitoring [d]...................... IH Technician--Initial. ........... ........... ....................... ........... ............ 2,808.63
                 IH Technician-- ........... ........... ....................... ........... ............ 1,379.86
                 Additional and
                 Periodic.
                Regulated Area/Job Briefing [e]..... Production Worker...... 31-33 51-0000 Production Occupations. 17.78 45.8 25.92
                Medical Surveillance [e]............ Human Resources Manager 31-33 11-3121 Human Resources 55.29 45.8 80.61
                 Managers.
                Exposure Control Plan, Medical Clerical............... 31-33 43-4071 File Clerks............ 16.98 45.8 24.76
                 Surveillance, and Medical Removal
                 [e].
                Training [e]........................ Training Instructor.... 31-33 13-1151 Training and 28.94 45.8 42.19
                 Development
                 Specialists.
                Medical Surveillance [e]............ Physician (Employers' 31-33 29-1228 Physicians, All Other; 94.10 45.8 137.19
                 Physician). and Ophthalmologists,
                 Except Pediatric.
                Multiple Provisions [f]............. First Line Supervisor.. Various 51-1011 First-Line Supervisors 30.30 45.8 44.18
                 of Production and
                 Operating Workers.
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                Sources: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2020) (Document ID 2250).
                [a] 2010 Standard Occupational Classification System. Bureau of Labor Statistics. http://www.bls.gov/soc/classification.htm.
                [b] BLS, 2020c. 45.8 percent represents fringe as a percentage of base wages. BLS-reported data for fringe as a percentage of total compensation is 31.4
                 percent.
                [c] ERG estimates based on discussions with affected industries, and inflated to 2019 Dollars.
                [d] Wages used in the economic analysis for the Silica final rule, inflated to 2019 Dollars.
                [e] BLS, 2020a
                [f] BLS, 2020a; Weighted average for SOC 51-1011 in NAICS 313000, 314000, 315000, 316000, 321000, 322000, 323000, 324000, 325000, 326000, 327000,
                 335000, 336000, 337000, and 339000.
                [[Page 53971]]
                 Table IV-8--Estimated Current Compliance Rates for Industry Sectors Affected by OSHA's Beryllium Standard
                ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Hygiene Respirators Housekeeping
                 Exposure Regulated Medical Medical Exposure ------------------------------- --------------------------------------------------------
                 Application group Job assessment areas/ surveillance removal control PPE (%) Training Employee/ Establishment/ Vacuum,
                 (%) competent (%) program (%) plan (%) Employees Establishments (%) Respirator Respirator Labor (%) Bags,
                 person (%) (%) (%) (%) Program (%) Labels (%)
                ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Construction
                ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Abrasive Blasting--Construction Abrasive Blaster. 0 75 75 0 75 90 100 100 75 100 100 100 100
                Abrasive Blasting--Construction Pot Tender....... 0 75 75 0 75 90 100 100 75 75 75 100 100
                Abrasive Blasting--Construction Cleanup.......... 0 75 75 0 75 90 100 100 75 75 75 100 100
                ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Abrasive Blasting--Shipyards
                ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Abrasive Blasting--Shipyards... Abrasive Blaster. 0 75 75 0 75 90 100 100 75 100 100 100 100
                Abrasive Blasting--Shipyards... Pot Tender....... 0 75 75 0 75 90 100 100 75 75 75 100 100
                Abrasive Blasting--Shipyards... Cleanup.......... 0 75 75 0 75 90 100 100 75 75 75 100 100
                ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 Welding--Shipyards
                ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Welding--Shipyards............. Welder........... 0 0 0 0 0 100 100 100 0 100 100 100 100
                ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2020) (Document ID 2250).
                [a] Estimated compliance rates for medical surveillance do not include medical referrals. OSHA estimates that baseline compliance rates for medical referrals are zero percent for all application groups shown in the table.
                * Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasive to etch the surfaces of boats and ships.
                ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
                [[Page 53972]]
                C. Technological Feasibility Summary
                 This section summarizes OSHA's technological feasibility findings
                made in the 2017 FEA (see Document ID 2042, FEA Chapter IV--
                Technological Feasibility). Because this final rule contains no new
                requirements that might raise feasibility concerns, OSHA's
                technological feasibility analysis remains unchanged from the 2017
                final rule. The findings are presented here for informational purposes
                only. The information in this section is drawn entirely from the 2017
                FEA and contains no new information or assessment.
                 Overall, based on the information discussed in Chapter IV of the
                2017 FEA, OSHA determined that the majority of the exposures in
                construction and shipyards are either already at or below the new final
                PEL, or can be adequately controlled to levels below the final PEL
                through the implementation of additional engineering and work practice
                controls for most operations most of the time. The one exception is
                that OSHA determined that workers who perform open-air abrasive
                blasting using mineral grit (i.e., coal slag) will routinely be exposed
                to levels above the final PEL even after the installation of feasible
                engineering and work practice controls, and therefore, these workers
                will also be required to wear respiratory protection. Therefore, OSHA
                concluded in the January 9, 2017 final rule that the final PEL of 0.2
                [micro]g/m\3\ is technologically feasible in abrasive blasting in
                construction and shipyards and in welding in shipyards.
                D. Costs of Compliance
                Introduction
                 Throughout this section, OSHA presents cost-saving formulas in the
                text, usually in parentheses, to help explain the derivation of cost-
                saving estimates for the individual provisions. Because the values used
                in the formulas shown in the text are shown only to the second decimal
                place, while the spreadsheets supporting the text are not limited to
                two decimal places, the calculation using the presented formula will
                sometimes differ slightly from the totals presented in the tables.
                 These estimates of cost savings are largely based on the cost
                estimates presented for Regulatory Alternative 2a in the preamble for
                the 2017 final rule (82 FR at 2612-15), which were in turn derived from
                the Costs of Compliance chapter (Chapter V) of the 2017 FEA. OSHA has
                retained the same calculation methods from the 2017 FEA, detailed in
                Chapter V of that document, and has updated all wages and unit costs to
                2019 dollars. All cost savings in this FEA similarly are expressed in
                2019 dollars and were annualized using discount rates of 3 percent and
                7 percent, as required by OMB.\53\ Unit costs developed in this section
                were multiplied by the number of workers who would have to comply with
                the provisions, as identified in Section B of this FEA (Profile of
                Affected Application Groups, Establishments, and Employees). The
                estimated number of affected workers depends on what level of exposure
                triggers a particular provision and the percentage of those workers
                already in compliance. In a few cases, costs were calculated based on
                the number of firms. As in the 2017 FEA, OSHA is estimating that the
                beryllium standards will reduce the number of workers exposed to
                beryllium over the PEL by 90 percent. Therefore, for ancillary
                provisions that require employers to take action for employees who
                continue to be exposed over the PEL, like respiratory protection and
                PPE, OSHA estimates the cost based on ten percent of the number of
                employees exposed over the PEL in the exposure profiles.
                ---------------------------------------------------------------------------
                 \53\ See OMB Memo M-17-21 (April 5, 2017), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf. OSHA included the 3 percent rate in its primary
                analysis, but Appendix IV-A of this PEA also presents costs by NAICS
                industry and establishment size categories using, as alternatives, a
                7 percent discount rate--shown in Table IV-21--and a 0 percent
                discount rate--shown in Table IV-22.
                ---------------------------------------------------------------------------
                 For purposes of calculating costs, OSHA assumes a 250-day work
                year. This is a standard calculation that OSHA and others use, which
                assumes employees work 5 days a week with 2 weeks of vacation,
                resulting in 250 work days per year (50 weeks x 5 work days a week).
                 Estimated compliance rates are presented in Table IV-8 in Section B
                of this FEA. The estimated costs for this beryllium rule represent the
                additional costs necessary for employers to achieve full compliance
                with the rule. The costs of complying with the beryllium program
                requirements therefore depend on the extent to which employers in
                affected application groups have already undertaken some of the
                required actions. A discussion of affected workers is presented in
                Section B of this FEA. Complete calculations are available in the OSHA
                spreadsheet in support of the FEA (Document ID 2250). Annualization
                periods for expenditures on equipment are based on equipment life, and
                one-time costs are annualized over a 10-year period.\54\ The agency
                first presents costs for the full 2017 final rule with only updated
                wages, unit costs, and hiring rates based on 2019 data, updated from
                the PEA for this proposal. All other estimates (compliance rates,
                exposure profile, etc.) are the same as the 2017 FEA. This is the
                baseline from which all cost savings of the rule are benchmarked.
                ---------------------------------------------------------------------------
                 \54\ Executive Order 13563 directs agencies ``to use the best
                available techniques to quantify anticipated present and future
                benefits and costs as accurately as possible.'' In addition, OMB
                Circular A-4 suggests that analysis should include all future costs
                and benefits using a ``rule of reason'' to consider for how long it
                can reasonably predict the future and limit its analysis to this
                time period. Annualization should not be confused with depreciation
                or amortization for tax purposes. Annualization spreads costs out
                evenly over the time period (similar to the payments on a mortgage)
                to facilitate comparison of costs and benefits across different
                years. In cases where costs occur on an annual basis, but do not
                change between years, annualization is not necessary, and OSHA may
                refer simply to ``annual'' costs.
                ---------------------------------------------------------------------------
                 Table IV-9 shows these costs, which total for all occupations in
                construction and shipyards to $12.8 million at a discount rate of 3
                percent, an increase of 4 percent from the equivalent cost for the 2017
                FEA ($12.3 million).
                 Table IV-9--Total Annualized Costs of Full 2017 Final Beryllium Rule, by Sector and Six-Digit NAICS Industry;
                 Results Shown by Size Category
                 [3 Percent discount rate, 2019 dollars]
                ----------------------------------------------------------------------------------------------------------------
                 Very small
                 Application group/NAICS Industry All Small entities entities (https://www.grantthornton.com/-/media/content-page-files/public-sector/pdfs/surveys/2018/2017-government-contractor-survey. According to Grant
                Thornton's 2017 Government Contractor Survey, on-site rates are
                generally higher than off-site rates, because the on-site overhead
                pool includes the facility-related expenses incurred by the company
                to house the employee, while no such expenses are incurred or
                allocated to the labor costs of direct charging personnel who work
                at the customer site. For further examples of overhead cost
                estimates, please see the Employee Benefits Security
                Administration's guidance at https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-july-2017.pdf.
                ---------------------------------------------------------------------------
                 If OSHA had included an overhead rate when estimating the marginal
                cost of labor, without further analyzing an appropriate quantitative
                adjustment, and adopted for these purposes an overhead rate of 17
                percent on base wages, the cost savings of this rule would increase by
                approximately $243,000 per year, or approximately 10 percent above the
                primary estimate of cost savings.
                Table IV-10--Total Annualized Cost Savings, by Sector and Six-Digit NAICS Industry, for Entities Affected by the
                 Shipyard and Construction Beryllium Standards
                 [By size category, 3 percent discount rate, 2019 dollars]
                ----------------------------------------------------------------------------------------------------------------
                 Very small
                 Application group/NAICS Industry All Small entities entities (57 58
                ---------------------------------------------------------------------------
                 \57\ Several commenters discussed the written exposure control
                plan as it relates to the overall scope of the rule. A discussion of
                comments on this subject can be found in the Summary and Explanation
                section. For purposes of this FEA, the agency is not making any
                adjustments to its scope of affected industries.
                 \58\ This new addition from the NPRM is judged to have
                negligible effects on the cost of the written control plan. Hence
                the cost estimates for this provision in this FEA are the same as
                the NPRM.
                ---------------------------------------------------------------------------
                 The agency estimates that the cost for the written exposure control
                plan will be cut in half due to the reduced requirements in this rule.
                This estimate includes the additional time needed for the new
                paragraphs that require including procedures both for containment and
                the removal, cleaning, and maintaining of PPE. OSHA estimated in the
                2017 final rule that the time burden per establishment for an average-
                sized firm to develop the initial written exposure control plan was 8
                hours. With the simplified written plan requirements in this final
                rule, the agency judges that a manager will need only 4 hours, a
                reduction of 4 hours, for a per establishment cost savings of $322.44
                at an hourly wage of $80.61 (Human Resources Managers, SOC: 11-3121),
                to develop the plan.
                 In addition, because larger firms with more affected workers will
                need to develop more complicated written control plans, OSHA estimated
                for the 2017 beryllium standards that the development of a plan would
                require an extra thirty minutes of a manager's time per affected
                employee over the 4 hours required for average-sized firms. The reduced
                number of job titles and operations that would need to be listed in
                some cases for this rule, as well as other elements, will decrease this
                burden, and the agency has lowered the time per affected employee to 15
                minutes, a reduction of 15 minutes. The cost savings for 15 minutes
                less of a manager's time per affected employee to develop a less
                complicated plan is $20.15 (0.25 x $80.61) per affected employee in
                this FEA.
                 Because of various triggers under which the employer would have to
                update the plan at least annually after the first year, the agency
                further estimated that under the 2017 beryllium standards, on average,
                managers would need 12 minutes (0.2 hours) per affected employee per
                quarter--or 48 minutes (4 x 12), which equals 0.8 hours, per affected
                employee per year--to review and update the plan. The streamlined plan
                will similarly be simpler to update, and the agency assumes the amount
                will be cut in half, from 48 minutes per employee per year to 24
                minutes, a reduction of 24 minutes. Thus, the cost savings for managers
                to review and update the plan would be $32.24 (0.4 x $80.61 per
                affected employee) for years 2-10.
                 Finally, OSHA estimated 5 minutes of clerical time each year per
                employee for providing each employee with a copy of the written
                exposure control plan. This will not change under this rule, so there
                are no cost savings for this element. See Table IV-11 for a summary of
                these unit cost saving estimates.
                 Table IV-11--Unit Cost Savings for Written Exposure Control Plan
                ------------------------------------------------------------------------
                 Item Value
                ------------------------------------------------------------------------
                 Develop Plan
                ------------------------------------------------------------------------
                HR Manager Hour Decrease per Establishment.............. 4
                HR Manager Hour Decrease per Employee................... 0.25
                HR Manager Wage......................................... $80.61
                Unit Cost Savings per Establishment..................... $322.44
                Unit Cost Savings per Employee.......................... $20.15
                ------------------------------------------------------------------------
                 Review Plan
                ------------------------------------------------------------------------
                HR Manager Hour Decrease per Employee................... 0.10
                Times Reviewed per Year................................. 4
                HR Manager Wage......................................... $80.61
                Unit Cost Savings per Employee.......................... $32.24
                ------------------------------------------------------------------------
                 Total
                ------------------------------------------------------------------------
                Unit Cost Savings per Establishment..................... $322.44
                Unit Cost Savings per Employee.......................... $52.39
                ------------------------------------------------------------------------
                Sources: BLS, 2020a; BLS, 2018; US DOL, OSHA, Directorate of Standards
                 and Guidance, Office of Regulatory Analysis (OSHA, 2020) (Document ID
                 2250).
                 OSHA estimates that the total annualized cost savings for reducing
                the requirements for development and update of a written exposure
                control plan is $126,668 for all affected industries in shipyards and
                construction.
                 In addition, OSHA is revising paragraph (f)(2) concerning
                engineering and work practice controls by removing the requirement to
                implement one engineering or work practice control where exposures are
                between the action level and the PEL. However, based on the
                technological feasibility analysis presented in Chapter IV of the 2017
                FEA, OSHA determined that there were no instances in construction or
                shipyards where this provision would apply (see Document ID 2042,
                Chapter V, pp. V-11 to V-12). Thus, this revision has no effect on
                costs.
                 OSHA is not revising paragraph (f)(3), which prohibits rotation of
                workers to achieve the TWA PEL and STEL, so there are no cost savings
                associated with this provision.
                [[Page 53976]]
                 OSHA is not revising the baseline compliance estimates for the
                requirements of paragraph (f), so there are no associated cost
                adjustments.
                Respiratory Protection
                Overview of Regulatory Requirements in the 2017 Final Rule
                 The employer must provide respiratory protection at no cost to the
                employee and ensure that each employee uses respiratory protection:
                during periods necessary to install or implement feasible engineering
                and work practice controls where airborne exposure exceeds, or can
                reasonably be expected to exceed, the TWA PEL or STEL; during
                operations, including maintenance and repair activities and non-routine
                tasks, when engineering and work practice controls are not feasible and
                airborne exposure exceeds, or can reasonably be expected to exceed, the
                TWA PEL or STEL; during operations for which an employer has
                implemented all feasible engineering and work practice controls when
                such controls are not sufficient to reduce airborne exposure to or
                below the TWA PEL or STEL; during emergencies; and when an employee who
                is eligible for medical removal under paragraph (l)(1) chooses to
                remain in a job with airborne exposure at or above the action level, as
                permitted by paragraph (l)(2)(ii) of this standard.
                 The selection and use of such respiratory protection must be in
                accordance with the Respiratory Protection standard (29 CFR 1910.134).
                The employer must provide at no cost to the employee a powered air-
                purifying respirator (PAPR) instead of a negative pressure respirator
                when respiratory protection is required, an employee requests one, and
                the PAPR would provide adequate protection to the employee.
                Cost Savings Estimates of This Rule
                Changes From the 2017 FEA
                 OSHA is revising paragraph (g) by removing the requirement to
                provide respiratory protection during emergencies. In the 2017 final
                rule, OSHA stated that emergencies should be rare and therefore did not
                account for any respirator costs due to emergencies. The cost
                adjustments described in this section are due to revised baseline
                compliance estimates from the 2019 PEA and are discussed below.
                Updated Baseline Compliance Estimates
                 As discussed in section IV.B of this FEA, the compliance rate for
                respirator use, for abrasive blasting operators only, is estimated to
                be 100 percent in this FEA, due to closer analysis of existing
                standards for operators. The 2017 FEA estimated compliance rates for
                respirators for all abrasive blasting occupations as 75 percent. Hence,
                there is a cost adjustment due to the 25 percent of operators who will
                not need to be provided respirators as estimated under the 2017 final
                rule. For pot tenders and helpers, OSHA is not estimating a change in
                the compliance rate for respiratory protection. For welders in
                shipyards, the change in the exposure profile from the 2017 FEA to the
                2017 PEA (as explained above in section IV.B.), and retained in this
                FEA, slightly decreased respirator use as well. The 2017 FEA estimated
                a 0 percent compliance rate for respiratory protection and a 25 percent
                compliance rate for setting up a respiratory protection program, while
                this FEA estimates a 100 percent compliance rate for both. The 2017 FEA
                estimated 29.7 percent of welders in shipyards had beryllium exposures
                over the new PEL of 0.2 [micro]g/m\3\. The 2017 PEA and this FEA
                estimate that only 3.7 percent of welders in shipyards have beryllium
                exposures over the new PEL of 0.2 [micro]g/m\3\. As in the 2017 FEA,
                OSHA is estimating that the beryllium standards will reduce the number
                of workers with exposures above the PEL by 90 percent.
                 The cost method that follows is largely the same as that used in
                the 2017 FEA with updated 2019 wage rates based on BLS data and the GDP
                implicit price deflator, with two exceptions. First, blasting
                operators, due to other existing standards (Sec. Sec. 1926.57(f),
                1915.34(c)), must use supplied air respirators (SARs) and will not have
                the option of requesting a PAPR. Second, no cleaning costs for a PAPR
                were estimated in the 2017 FEA. This is revised below because OSHA now
                estimates that PAPRs will need to be cleaned periodically.
                Unit Cost Estimates
                 There are five primary costs for respiratory protection. First,
                there is a cost per establishment to set up a written respirator
                program in accordance with the respiratory protection standard (29 CFR
                1910.134). The respiratory protection standard requires written
                procedures for the proper selection, use, cleaning, storage, and
                maintenance of respirators. OSHA estimates that these procedures will
                take a human resources manager 8 hours to develop, at an hourly wage of
                $80.61 (Human Resources Managers, SOC: 11-3121), for an initial cost of
                $645 (8 x $80.61). Every year thereafter, OSHA estimates that the same
                employee will take 2 hours to update the respirator program, for an
                annual cost of $161 (2 x $80.61).
                 The four other major costs of respiratory protection are the per-
                employee costs for all aspects of respirator use: Equipment, training,
                fit testing, and cleaning.
                 In the 2017 FEA, no respirator cleaning was assumed to be required
                for PAPRs. OSHA explained in the 2019 PEA that the agency now believes
                that despite the fact that PAPRs are assigned to individual employees,
                PAPRs, like half-mask respirators, will need periodic cleaning (84 FR
                at 53934). No commenter challenged this determination and the agency is
                including the cost for respirator cleaning in this FEA.
                 This cleaning cost for a PAPR is estimated to be the same as for a
                half mask respirator. Periodic cleaning of a PAPR is estimated to be
                needed every two days, or 125 times annually (250/2). Each cleaning is
                estimated to take 5 minutes, or 0.08 (5/60) hours, and the wage cost
                per hour is $25.92 (Production Occupations, SOC: 51-0000). Multiplied
                together, this gives an annual respirator cleaning cost of $270.03 (125
                x 0.08 x $25.92). Summing these costs together, the total annualized
                per-employee cost for a full-face powered air-purifying respirator is
                $1460.01 ($147.87 + $96.03 + $946.08 + $270.03).
                Cost Savings Estimates
                 In the 2017 FEA, OSHA estimated that PAPRs would be used 10 percent
                of the time in situations where only the APF of 10 provided by a half-
                mask negative pressure respirator would normally be required to comply
                with the final beryllium TWA PEL and STEL. For the 25 percent of pot
                tenders and clean-up workers who need respirators (accounting for an
                unchanged baseline compliance rate of 75 percent), this amounts to 2.5
                percent of the pot tenders and clean-up workers who are still exposed
                over the PEL after the standards take effect who will use PAPRs. OSHA
                is therefore adjusting the costs by including the cost of cleaning
                PAPRs for that 2.5 percent of workers.
                 For the revised compliance rate for abrasive blasting operators,
                from 75 percent in the 2017 FEA to 100 percent in this FEA, there is a
                cost adjustment due to the 25 percent of overexposed operators after
                the standards take effect who should not have had costs taken in the
                2017 FEA. Since the 2017 FEA did not estimate cleaning costs for PAPRs,
                the cost savings here will not include such cleaning costs. This cost
                savings consists of the cost of PAPRs minus cleaning costs (10 percent
                of
                [[Page 53977]]
                respirators), and the cost of half-mask respirators (90 percent of
                respirators).
                 The cost adjustment due to the change in the exposure profile for
                welders discussed in section IV.B of this FEA uses this same
                methodology of accounting for savings due to PAPRs (minus cleaning
                costs) and half-mask respirators. Furthermore, OSHA notes there is a
                change in the exposure profile for welders in shipyards from the 2017
                FEA, but because the revised baseline compliance rate for these workers
                is 100 percent, this does not affect the cost adjustment.
                 The exposure profile (Table IV-2) shows the number of abrasive
                blasting operators that are above the 0.2 [micro]g/m\3\ PEL. This FEA
                follows the 2017 FEA of estimating 10 percent of workers will still be
                above the PEL after the standards take effect. The compliance rate for
                operators went from 75 percent in the 2017 FEA to 100 percent in this
                FEA, so 25 percent of operators above the PEL after the rule is in
                place were assigned costs in the 2017 FEA that, with the 100 percent
                compliance rate, should no longer be taken. In the 2017 FEA, OSHA
                estimated the average cost of a respirator for an abrasive blasting
                operator as 90 percent of the cost of a half-mask respirator and 10
                percent of a PAPR. For the abrasive blasting operators above the PEL,
                this gives a total cost adjustment of $41,507.
                 As discussed above, 2.5 percent of pot-tenders and clean-up workers
                still exposed above the PEL after the standards take effect will be
                using PAPRs. The total number of such workers can be found in Table IV-
                2, and when multiplied by cleaning costs of PAPRs, this gives an
                additional cost adjustment of $12,556 for the revision from the 2017
                FEA of including cleaning costs for PAPRs for these workers.
                 Welders in shipyards were inadvertently assigned a 0 percent
                compliance rate in the 2017 FEA, revised in this FEA to 100 percent.
                Hence all welders in shipyards, found in Table IV-2, will be affected.
                Like all others needing respirators, in the 2017 FEA, 90 percent were
                assigned half-mask respirators and 10 percent were assigned PAPRs.
                These two groups of welders, multiplied by the costs of their
                respective type of respirators (minus the cleaning costs that were not
                accounted for in the 2017 FEA), gives a cost adjustment of $871 for
                welders in shipyards.
                 The reduction in workers needing respirators and needing to
                participate in respiratory protection programs due to the update of the
                compliance rate for abrasive blasting operators in both construction
                and shipyards and welders in shipyards, the extra cleaning costs for
                pot-tenders and clean-up workers who opt for PAPRs, and the updated
                unit costs, together give a total cost adjustment of $54,934, as shown
                in Table IV-16.
                 Tables IV-12 and IV-13 summarize the unit cost estimates for the
                two types of respirators.
                 Table IV-12--Unit Respiratory Protection Cost per Employee
                ------------------------------------------------------------------------
                 Value
                 Item -------------------------------
                 Half mask PAPR
                ------------------------------------------------------------------------
                 Training
                ------------------------------------------------------------------------
                Class size.............................. 4 4
                Hours................................... 2 4
                Employee wage........................... $25.92 $25.92
                Supervisor wage......................... $44.18 $44.18
                Hourly cost per employee................ $36.97 $36.97
                Annual Cost Savings per Employee........ $73.94 $147.87
                ------------------------------------------------------------------------
                 Respirator Cleaning Cost Savings
                ------------------------------------------------------------------------
                Frequency per year...................... 125 125
                Employee hours.......................... 0.08 0.08
                Employee wage........................... $25.92 $25.92
                Annual Cost Savings per Employee........ $265.30 $270.03
                ------------------------------------------------------------------------
                 Fit Testing
                ------------------------------------------------------------------------
                Testing group size...................... 4.00 2.00
                Employee hours.......................... 1.00 2.00
                Employee wage........................... $25.92 $25.92
                Supervisor wage......................... $44.18 $44.18
                Annual Cost Savings per Employee........ $36.97 $96.03
                ------------------------------------------------------------------------
                 Equipment Cost
                ------------------------------------------------------------------------
                Respirator.............................. $34.28 $988.31
                Respirator service life (years)......... 2 3
                Annualized respirator cost savings (3%). $17.91 $349.40
                Annual accessory cost savings........... $214.15 $596.68
                Total Annualized Equipment Cost Savings $232.06 $946.08
                 (3%)...................................
                ------------------------------------------------------------------------
                 Total
                ------------------------------------------------------------------------
                Equipment............................... $232.06 $946.08
                Training, cleaning, and fit testing..... $376.21 $513.93
                ------------------------------------------------------------------------
                Note: Figures in rows may not add to totals due to rounding.
                [[Page 53978]]
                
                Sources: BLS, 2020a; BLS, 2018; Magidglove, 2012; Grainger, 2012e;
                 Restockit, 2012; Spectrumchemical, 2012; Conney, 2012a; Conney, 2012b;
                 Zoro Tools, 2012a; Grainger, 2019c; Grainger, 2019d; Advanz Lens
                 Goggles, 2019; Gemplers, 2012; Buying Direct, 2012; Amazon.com, 2013;
                 Zoro Tools, 2013; Grainger, 2013b; EnviroSafety Products, 2013; BEA,
                 2020; US DOL, OSHA, Directorate of Standards and Guidance, Office of
                 Regulatory Analysis (OSHA, 2020) (Document ID 2250); Grainger, 2019a;
                 Grainger, 2019b.
                 Table IV-13--Half-Mask and Powered Air Purifying Respirator (PAPR) Unit
                 Cost
                ------------------------------------------------------------------------
                 Half-mask PAPR
                ------------------------------------------------------------------------
                 Respirator
                ------------------------------------------------------------------------
                Respirator.............................. $34.28 $988.31
                ------------------------------------------------------------------------
                 Annual Costs
                ------------------------------------------------------------------------
                Training................................ $73.94 $147.87
                Cleaning................................ $265.30 $270.03
                Fit Testing............................. $36.97 $96.03
                Accessories............................. $214.15 $596.68
                Annual Subtotal......................... $590.36 $1,110.61
                ------------------------------------------------------------------------
                 Annualized Costs
                ------------------------------------------------------------------------
                Years................................... 2 3
                Annualized Unit Cost (3%)............... $608.27 $1,460.00
                Annualized Unit Cost (7%)............... $609.31 $1,487.20
                ------------------------------------------------------------------------
                Sources: Magidglove, 2012; Grainger, 2012e; Restockit, 2012;
                 Spectrumchemical, 2012; Conney, 2012a; Conney, 2012b; Zoro Tools,
                 2012a; Grainger, 2019c; Grainger, 2019d; Advanz Lens Goggles, 2019;
                 Gemplers, 2012; Buying Direct, 2012; Amazon.com, 2013; Zoro Tools,
                 2013; Grainger, 2013b; EnviroSafety Products, 2013; Grainger, 2019a;
                 Grainger, 2019b.
                Personal Protective Clothing and Equipment
                Overview of Regulatory Requirements in the 2017 Final Rule
                 Under the 2017 final rule, personal protective clothing and
                equipment are required for workers in shipyards and construction where
                exposure exceeds or can reasonably be expected to exceed the TWA PEL or
                STEL, or where there is a reasonable expectation of dermal contact with
                beryllium.
                 The employer must ensure that each employee removes all beryllium-
                contaminated personal protective clothing and equipment at the end of
                the work shift, at the completion of all tasks involving beryllium, or
                when personal protective clothing or equipment becomes visibly
                contaminated with beryllium, whichever comes first. All such personal
                protective clothing and equipment must be removed as specified in the
                written exposure control plan. Personal protective clothing and
                equipment must be kept separate from street clothing and the employer
                must ensure that storage facilities prevent cross-contamination. The
                employer must ensure that personal protective clothing and equipment is
                not removed from the workplace except by authorized personnel, with
                appropriate containers and labels that are in accordance with paragraph
                (m)(2). All reusable personal protective clothing and equipment must be
                cleaned, laundered, repaired, and replaced as needed.
                 The employer must ensure that beryllium is not removed from
                personal protective clothing and equipment by blowing, shaking, or any
                other means that disperses beryllium into the air. The employer must
                inform in writing the persons or the business entities who launder,
                clean, or repair the personal protective clothing or equipment required
                by this standard of the potentially harmful effects of airborne
                exposure to and dermal contact with beryllium and that the personal
                protective clothing and equipment must be handled in accordance with
                this standard.
                Cost Savings Estimates of This Final Rule
                 OSHA is making several revisions to the PPE provisions of the
                standards. OSHA is removing the requirements regarding storage
                facilities, providing PPE based on an expectation of dermal contact
                with beryllium, removal of PPE when it becomes visibly contaminated
                with beryllium, storing and keeping PPE separate from employees' street
                clothing, removal of beryllium-contaminated PPE from the workplace, and
                transportation and labeling of PPE that is removed from the workplace.
                OSHA is also removing the qualifier ``beryllium-contaminated'' and
                replacing it with ``required by this standard.'' A further change from
                the proposed rule is that OSHA is also adding a provision that states
                the employer must ensure that no employee with reasonably expected
                exposure above the TWA PEL or STEL removes personal protective clothing
                and equipment required by the beryllium standard from the workplace
                unless it has been cleaned in accordance with paragraph (h)(3)(ii). The
                2017 FEA, and the 2019 PEA, estimated that employers would rent rather
                than buy PPE. The agency continues to estimate this will be the common
                approach, with any cases due to this last provision having a negligible
                effect on costs.
                 Under these changes, the PPE provisions will only apply to
                employees who are, or can reasonably be expected to be, exposed over
                the TWA PEL or STEL. In the 2017 FEA, OSHA also estimated PPE costs for
                the 25 percent of employees who would be exposed below the PEL but who
                nevertheless may have dermal contact with beryllium. OSHA also
                estimated ten minutes of clerical time for each establishment with
                laundry needs to notify the cleaners in writing of the potentially
                harmful effects of beryllium exposure and how the protective clothing
                and equipment must be handled in accordance with the beryllium
                standard, so the removal of that provision will result in a cost
                savings. OSHA did not estimate costs for extra storage facilities
                because it judged that no employers would need them.
                 As stated in the compliance section in IV.B, above, OSHA estimates
                a 90 percent compliance rate for all PPE for workers who have exposures
                above the TWA PEL or STEL. This is a change
                [[Page 53979]]
                from the 2017 FEA, which estimated a 75 percent compliance rate for PPE
                for all workers, not just those exposed above the TWA PEL or STEL. This
                results in two cost effects. First, there is an adjustment to costs due
                to the decreased number of workers, from 25 percent to 10 percent, with
                exposures above the TWA PEL or STEL who will need PPE. The exposure
                profile (Table IV-2) shows the number of workers who are exposed above
                the 0.2 [micro]g/m\3\ PEL. For those above the PEL, the 15 percent
                decrease in the compliance rate from 25 percent to 10 percent, along
                with OSHA's standard calculation that 10 percent of those workers will
                continue to be exposed above the PEL after the standards take effect,
                means 1.5 percent of these workers will no longer need PPE. This number
                of workers times the unit costs (discussed below) gives the cost
                adjustment for this group. Second, for those workers whose exposures
                are below the TWA PEL and STEL, there will also be a cost savings for
                the 25 percent that the 2017 FEA estimated did not have proper PPE, due
                to the removal of the dermal contact trigger for PPE. The exposure
                profile (Table IV-2) shows the number of workers below the PEL. OSHA is
                revising the compliance rate from 75 percent to 100 percent because the
                PPE provisions are no longer required for those below the TWA PEL and
                STEL, so 25 percent will no longer need PPE. This number of workers
                times the unit costs (discussed below) gives the cost savings for this
                group.
                 The cost savings due to the removal of the requirement to notify
                laundries is per-establishment, not per-worker, and the number of
                establishments can be found in Table IV-4. The total number of affected
                establishments times the cost of clerical time, below, gives the cost
                savings for this revision.
                 In the 2017 FEA, OSHA estimated that employers would rent rather
                than purchase PPE. The annual cost for rental would be $54.62 per
                employee, inflated from the 2017 FEA estimate of $48.62. The per-
                establishment annual cost savings for the ten minutes of clerical time
                required to notify laundries is $4.12 ($24.76 hourly wage, File Clerks,
                SOC: 43-4071).
                 After accounting for the 25 percent of employees who no longer need
                PPE due to the removal of the dermal contact trigger, the change in the
                compliance rate from 75 percent to 90 percent, and the removal of the
                ten minutes of clerical time for notifying laundries, the total
                annualized cost savings and adjustment for the revisions to the PPE
                paragraph is estimated to be $167,196 at a 3 percent discount rate.
                Hygiene Areas and Practices
                Overview of Regulatory Requirements in the 2017 Final Rule
                 The 2017 final rule requires affected shipyard and construction
                employers to provide readily accessible washing facilities to remove
                beryllium from the hands, face, and neck of each employee exposed to
                beryllium; ensure that employees who have dermal contact with beryllium
                wash any exposed skin at the end of the activity, process, or work
                shift and prior to eating, drinking, smoking, chewing tobacco or gum,
                applying cosmetics, or using the toilet; and provide employees required
                to use PPE with a designated change room where employees are required
                to remove their personal clothing. Wherever the employer allows
                employees to consume food or beverages at a worksite where beryllium is
                present, the employer must ensure that surfaces in eating and drinking
                areas are as free as practicable of beryllium and no employees enter
                any eating or drinking area with personal protective clothing or
                equipment unless, prior to entry, surface beryllium has been removed
                from the clothing or equipment by methods that do not disperse
                beryllium into the air or onto an employee's body. The employer must
                also ensure that no employees eat, drink, smoke, chew tobacco or gum,
                or apply cosmetics in work areas where there is a reasonable
                expectation of exposure above the TWA PEL or STEL.
                Cost Savings Estimates in This Rule
                 OSHA is rescinding this paragraph in its entirety. Both washing
                facilities and change rooms would no longer be directly required under
                this rule. However, because PPE is still required where airborne
                beryllium exceeds the TWA PEL or STEL, employers will still need to
                provide change rooms where exposures are above the TWA PEL or STEL
                pursuant to the sanitation standards.
                 The 2017 FEA estimated no costs for readily accessible washing
                facilities, under the expectation that employers already have such
                facilities in place where needed, and this FEA retains this estimate.
                Therefore, OSHA is estimating no cost savings from washing facilities
                due to this rule. The 2017 FEA did include costs for disposable head
                coverings that would be purchased for processes where hair may become
                contaminated by beryllium. Employers in construction and shipyards will
                not incur these costs under the existing standards because unlike in
                general industry, there are no requirements in construction or
                shipyards to provide showers where hair can become contaminated with
                beryllium. OSHA is therefore making a cost adjustment to account for
                this. The annual cost for one disposable head covering per day in 2019
                dollars is $31.32 (Grainger, 2013). The number of workers estimated to
                need such head coverings in the 2017 FEA is 542; so the total annual
                cost adjustment is $16,975 ($31.32 x 542).
                 The agency is not estimating cost savings for the removal of
                requirements to add a change room and segregated lockers. The
                sanitation standards (29 CFR 1926.51 and 29 CFR 1915.88) require
                employers to provide change rooms whenever they require employees to
                wear PPE to prevent exposure to hazardous or toxic substances. Under
                this rule, employers would still be required by the sanitation
                standards, combined with the PEL requirements in the 2017 beryllium
                final rule, to provide PPE to employees to prevent exposure to
                beryllium. Therefore, no cost savings would arise from this change.
                 The revisions to the PPE paragraph would remove the need for
                employees to change out of PPE, generally at the end of a shift, for
                those not exposed to airborne beryllium above the TWA PEL and STEL. In
                the 2017 FEA, OSHA included the cost of changing clothes in the costs
                for the hygiene provisions rather than the PPE provisions. The cost for
                a clothing change is the same as in the 2017 FEA, updated to 2018
                dollars. The agency expected that, in many cases, a worker will simply
                be adding, and later removing, a layer of clothing (such as a lab coat,
                coverall, or shoe covers) at work, which might involve no more than a
                couple of minutes a day. However, in other cases, a worker may need a
                full clothing change. Taking all these factors into account, OSHA
                estimated that a worker using PPE would need 5 minutes per day to
                change clothes (Document ID 2042, p. V-185). The annual cost per
                employee to change clothes is $540.06. This cost is based on a
                production worker earning $25.92 an hour (Production Occupation, SOC:
                51-0000) and taking 5 minutes per day to change clothes for 250 days
                per year ((5/60) x $25.92 x 250).
                 OSHA's removal of the eating and drinking areas and prohibited
                activities provisions of paragraph (i) have cost implications only for
                training, which is discussed later in this cost section.
                 The agency estimates the total annualized cost savings of the
                removal of paragraph (i) to be $309,464 for all affected
                establishments. The breakdown of these cost savings by NAICS code can
                be seen in Table IV-15 at the end of this program cost-savings section.
                [[Page 53980]]
                Housekeeping
                Overview of Regulatory Requirements in the 2017 Final Rule
                 The housekeeping provisions require the employer to follow the
                written exposure control plan when cleaning beryllium-contaminated
                areas, ensure that all spills and emergency releases of beryllium are
                cleaned up promptly and in accordance with the written exposure control
                plan required under paragraph (f)(1) of this standard. The provisions
                require the employer to ensure the use of HEPA-filtered vacuuming or
                other methods that minimize the likelihood and level of airborne
                exposure when cleaning beryllium-contaminated areas, and prohibit the
                employer from allowing dry sweeping or brushing for cleaning in such
                areas unless HEPA-filtered vacuuming or other methods that minimize the
                likelihood and level of airborne exposure are not safe or effective.
                The provisions also prohibit the employer from allowing the use of
                compressed air for cleaning in beryllium-contaminated areas unless the
                compressed air is used in conjunction with a ventilation system
                designed to capture the particulates made airborne by the use of
                compressed air. Where employees use dry sweeping, brushing, or
                compressed air to clean in beryllium-contaminated areas, the employer
                must provide, and ensure that each employee uses, respiratory
                protection and personal protective clothing and equipment in accordance
                with paragraphs (g) and (h) of the standards. The employer must also
                ensure that cleaning equipment is handled and maintained in a manner
                that minimizes the likelihood and level of airborne exposure and the
                re-entrainment of airborne beryllium in the workplace. When the
                employer transfers materials containing beryllium to another party for
                use or disposal, the employer must provide the recipient with the
                warning required by paragraph (m).
                Cost Savings Estimates in This Rule
                 OSHA is removing the requirements to follow the written exposure
                control plan when cleaning and to promptly clean up spills and
                emergency releases. OSHA is also revising the cleaning methods
                requirements to remove the reference to HEPA-filtered vacuuming and to
                trigger these provisions on the presence of dust resulting from
                operations that cause, or can reasonably be expected to cause, airborne
                exposure above the TWA PEL or STEL, rather than on the presence of a
                ``beryllium-contaminated area.'' In addition, OSHA is removing the
                qualifier ``in beryllium-contaminated areas'' from the requirement to
                provide PPE and respiratory protection in accordance with other
                provisions in the standards. Next, OSHA is prohibiting the use of
                compressed air for cleaning where the use of compressed air causes, or
                can reasonably be expected to cause, airborne exposure above the TWA
                PEL or STEL. Finally, OSHA is removing the requirement to provide a
                warning when transferring materials containing beryllium to another
                party for use or disposal.
                 The agency is estimating cost savings for removing the requirement
                to use HEPA-filtered vacuums for shipyards and construction and for
                removing the need for a warning label when transferring materials
                containing beryllium to another party for use or disposal. The other
                cost included for this provision is labor time spent doing housekeeping
                tasks, and the agency estimates the revisions do not alter its 2017 FEA
                estimate of an additional 5 minutes per day for each employee.
                 In the 2017 FEA, OSHA estimated a compliance rate for the
                housekeeping provisions of 75 percent for all workers in abrasive
                blasting based on the agency's determination that other standards
                required some housekeeping for abrasive blasting in both construction
                and shipyards. As discussed above, a further review of other standards
                has led the agency to revise its compliance rate for housekeeping to
                100 percent. While the revisions will limit the methods that employers
                may use to clean up beryllium, OSHA estimates that cleaning methods
                which do not disperse beryllium into the air take approximately the
                same amount of time as cleaning methods already in use. OSHA is making
                a cost adjustment in this FEA, maintaining the change in the 2019 PEA,
                for the additional 25 percent of workers in abrasive blasting
                operations who are now estimated to be performing housekeeping tasks.
                Furthermore, while those areas that are below the TWA PEL and STEL no
                longer have any requirements for housekeeping tasks, OSHA is not
                estimating an additional cost savings because its revised compliance
                estimate is already at 100 percent. OSHA estimated in the 2017 FEA that
                welding in shipyards had a 0 percent compliance rate for housekeeping.
                This has also been changed to 100 percent compliance in this FEA, as
                explained in section IV.B of this FEA. OSHA is also making a cost
                adjustment for this change in the compliance rate.
                 OSHA estimated the following costs for the housekeeping provisions
                in the 2017 FEA (Document ID 2042, pp. V-187-190, amounts adjusted for
                2019 dollars): A one-time annualized cost per worker of a HEPA-filtered
                vacuum ($652); the annual cost per worker of the additional time needed
                to perform housekeeping ($540); and the annual cost of the warning
                labels per worker ($6). The total annual per-employee cost was $1,197
                ($652 + $540 + $6). This per-employee cost is then multiplied by the 25
                percent of workers in abrasive blasting operations and 100 percent of
                the welders who are now estimated to be in compliance versus the 2017
                FEA to calculate the cost adjustment due to the revised baseline
                compliance rates.
                 The total annualized cost adjustment in this rule due to revisions
                to this ancillary provision are $1,764,878. The breakdown of these cost
                savings by NAICS code is shown in Table IV-15 at the end of this
                program cost-savings section.
                Medical Surveillance
                Overview of Regulatory Requirements in the 2017 Final Rule
                 The 2017 final rule requires affected employers in shipyards and
                construction to make medical surveillance available at a reasonable
                time and place, and at no cost, to the following employees:
                 1. Employees who are, or are reasonably expected to be, exposed at
                or above the action level for more than 30 days per year;
                 2. Employees who show signs or symptoms of chronic beryllium
                disease (CBD) or signs or symptoms of other beryllium-related health
                effects;
                 3. Employees exposed to beryllium during an emergency; and
                 4. Employees whose most recent written medical opinion required by
                this standard recommends periodic medical surveillance.
                 The medical surveillance paragraph also specifies the frequency
                with which examinations must be provided, the required contents of the
                examination, the information that the employer must provide to the
                physician or other licensed healthcare provider (PLHCP), the
                information that must be contained in the physician's written medical
                report for the employee, the information that must be contained in the
                physician's written medical opinion for the employer, and procedures
                and requirements related to referral to a CBD diagnostic center.
                Cost Savings of This Rule
                 OSHA is making minor changes to the medical surveillance provision
                of the 2017 final rule. In response to the 2019 NPRM, the agency
                received one
                [[Page 53981]]
                comment on its medical exam costs estimates. Referring to comments it
                had previously submitted, NABTU reiterated its prior assessment of
                medical exam costs: ``$216 is for shipping of specimen and lab
                analysis. In a standalone situation an additional charge would be for
                blood draw, which we estimate to be about $20.00'' (Document ID 2236,
                p. 2). Because NABTU's initial comments were reviewed and incorporated
                into the 2017 FEA and their subsequent comment indicates the estimates
                are generally unchanged, OSHA is not altering any of the unit costs
                from the 2017 FEA, including these medical surveillance costs.
                 First, OSHA is removing the emergency trigger for medical
                surveillance. The 2017 FEA did not break out a separate cost for
                emergencies, stating that ``a very small number of employees will be
                affected by emergencies in a given year'' (Document ID 2042, Chapter V,
                p. V-196). The agency therefore concludes that removing the emergency
                trigger will result in de minimis cost savings.
                 OSHA is also modifying the language in paragraph (k)(2)(iii) to
                match the General Industry standard. This modification adds more detail
                regarding requirements for a medical examination at the termination of
                an employee's employment and is meant to clarify who will receive such
                an exam. The agency does not expect this to significantly change the
                number of exams performed and judges it to have de minimis cost
                implications.
                 OSHA also is replacing from the 2017 standards the phrase
                ``airborne exposure to and dermal contact with beryllium'' in these
                provisions with the simpler phrase ``exposure to beryllium.'' As
                explained in the Summary and Explanation section, this is not a
                substantive change and has no cost implications.
                 OSHA proposed a change to the definition of CBD diagnostic center
                to clarify that a center must have a pulmonologist or pulmonary
                specialist on staff and must be capable of performing a variety of
                tests commonly used in the diagnosis of CBD, but need not necessarily
                perform all of the tests during all CBD evaluations. The 2016 FEA did
                not estimate that all tests would be performed during all CBD
                evaluations, so the agency takes no cost savings for this change. In
                response to comments received and to align with changes made in the
                July 14, 2020 general industry final rule (85 FR 42582), OSHA is
                further modifying the language of this definition from the language
                proposed in the 2019 NPRM. Specifically, rather than requiring CBD
                diagnostic centers to have a pulmonary specialist on site, the
                definition now specifies that centers must have one on staff. Also,
                rather than stating that each evaluation must include pulmonary
                function testing (as outlined by the American Thoracic Society
                criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy, the
                definition now states that CBD diagnostic centers must have the
                capacity to perform such tests. Because the 2017 FEA for a medical
                examination at a CBD diagnostic center costed the typical tests given
                by a CBD diagnostic center, these changes have no effect on costs (see
                Document ID 2042, Chapter V, p. V-204)
                 OSHA is amending paragraph (k)(7)(i) to require that the employer
                must provide, at no cost to the employee and at a CBD diagnostic center
                that is mutually agreed upon by the employer and employee, an
                evaluation at the CBD diagnostic center that must be scheduled within
                30 days, and must occur within a reasonable time. The 2017 beryllium
                standards required the actual evaluation to take place within 30 days.
                This change to paragraph (k)(7) allows increased flexibility in
                scheduling and may lead to minor cost savings.
                 In the 2019 NPRM, OSHA proposed that the employer provide an
                initial consultation with the CBD diagnostic center, rather than the
                full evaluation, within 30 days of the employer receiving notice that a
                full evaluation must be performed. This initial consultation could be
                done in conjunction with the tests but it was not required to be. As
                the initial consultation could be conducted remotely, by phone or
                virtual conferencing, the cost of the consultation would consist only
                of time spent by the employee and the PLHCP and would not have to
                include any travel or accommodation.
                 In the 2017 FEA, OSHA accounted for the cost of both the employee's
                time and the local examining physician's time for a 15-minute
                discussion (2017 FEA, Chapter V, p. V-206). The 2019 PEA concluded that
                because the consultation at the CBD diagnostic center would replace
                this initial discussion, there would be no additional cost.
                 In this final rule, OSHA is not adopting the proposed requirement
                for an initial consultation with the CBD diagnostic center. Since in
                the economic analysis the initial consultation was a replacement for a
                discussion with a local PLCHP, the removal of this requirement will
                have no change in costs: There will still be the discussion with the
                local PLCHP with the same unit cost.
                 OSHA is making another change from the requirements for the CBD
                diagnostic center examination as proposed in the 2019 NPRM. In this
                final rule, OSHA has clarified that, if the examining physician at the
                CBD diagnostic center recommends a test that is not available at that
                center, the test may instead be performed at another location that is
                mutually agreed upon by the employer and the employee. In terms of the
                cost impact of this change, it will allow more flexibility in
                identifying a location for tests and may allow employers to find more
                economical travel and accommodation options. The change also aligns the
                construction and shipyards standards to changes made in the July 14,
                2020 general industry final rule. The agency concludes these changes
                would produce minor, if any, cost savings, and no additional costs.
                 Another proposed change with potential implications for medical
                surveillance costs is a proposed change in the definition of confirmed
                positive. The 2019 NPRM proposed to clarify that confirmed positive
                means the person tested has had two abnormal BeLPT test results, an
                abnormal and a borderline test result, or three borderline test results
                obtained within the 30-day follow-up test period after a first abnormal
                or borderline BeLPT test result. Unlike the 2017 standards, the
                proposed change explicitly required that the qualifying test results be
                obtained within one testing cycle (including the 30-day follow-up test
                period required after a first abnormal or borderline BeLPT test
                result), rather than arguably over an unlimited time period. The 2019
                NPRM explained that some stakeholders had construed the 2017 final rule
                to allow these tests to cumulate over an unlimited time period though
                this was not the agency's intent. OSHA explained in the 2019 PEA that
                the exact effect of this proposed change was uncertain, as it is
                unknown how many employees would have a series of BeLPT results
                associated with a confirmed positive finding (two abnormal results, one
                abnormal and one borderline result, or three borderline results) over
                an unlimited period of time, but would not have any such combination of
                results within a single testing cycle.
                 OSHA received several comments discussing the practicality of the
                provisions relating to the 30-day testing cycle (Document ID 2208,
                2211, 2213, 2237, 2243, and 2244). These comments are discussed in the
                summary and explanation for paragraph (b). After reviewing the comments
                and record,
                [[Page 53982]]
                OSHA has further modified the definition of confirmed positive in this
                final rule from the definition proposed in the 2019 NPRM. In this final
                rule, OSHA is requiring that the set of tests that demonstrate
                confirmed positive must be from tests conducted within a 3-year period.
                This change aligns with similar revisions made in the July 14, 2020
                general industry final rule. As in the PEA in support of the 2018
                proposed revisions to the general industry standard, OSHA concludes
                that this change would not increase compliance costs and would
                incidentally yield some cost savings by lessening the likelihood of
                false positives.
                 Other changes are to align these standards with the (proposed)
                general industry standard and, similar to the economic analysis there,
                are also estimated to only have de minimis effects on costs.
                Medical Removal
                 OSHA is not making any changes to paragraph (l), Medical removal
                protection. OSHA is also not making any changes to the baseline
                compliance rate with this paragraph. Therefore, there are no cost
                savings associated with this provision.
                Communication of Hazards
                Overview of Regulatory Requirements in the 2017 Final Rule
                 Paragraph (m) of the beryllium standards for construction and
                shipyards sets forth the employer's obligations to comply with OSHA's
                Hazard Communication Standard (HCS) (29 CFR 1910.1200) relative to
                beryllium, and to provide warnings and training to employees about the
                hazards of beryllium.
                Cost Savings in This Rule
                 OSHA is making three changes to paragraph (m) in both the
                construction and shipyards standards. First, OSHA is removing the
                paragraph (m) provisions that require specific language for warning
                labels applied to materials designated for disposal or PPE when removed
                from the workplace ((m)(2) in construction and (m)(3) in shipyards).
                This is consistent with OSHA's modification to remove the corresponding
                requirements to provide such warning labels and any cost implications
                are accounted for in the sections on those corresponding provisions.
                 Second, OSHA is revising paragraphs (m)(3)(i) in construction and
                (m)(4)(i) in shipyards--renumbered as (m)(2)(i) and (m)(3)(i),
                respectively--to remove dermal contact as a trigger for training in
                accordance with the HCS (29 CFR 1910.1200(h)). As explained in the
                summary and explanation for paragraph (m), because OSHA judges that
                there are no workers who would have received training solely due to the
                potential for dermal contact, the agency has determined that the HCS
                training requirements will continue to apply to all workers that are
                covered under the construction and shipyards standards. Regardless, for
                purposes of its economic analysis, OSHA did not included in the 2017
                FEA costs associated with training under the HCS. Accordingly, OSHA
                expects no cost implications from this change.
                 Third, OSHA is revising the provisions of paragraph (m) for
                employee information and training related to emergency procedures
                ((m)(3)(ii)(D) in construction and (m)(4)(ii)(D) in shipyards) and
                personal hygiene practices ((m)(3)(ii)(E) in construction and
                (m)(4)(ii)(E) in shipyards), for consistency with OSHA's removal of
                emergency procedures and personal hygiene practices from the
                construction and shipyards standards. OSHA estimates that this change
                will lead to cost savings.
                 Below the agency first presents the methodology for training from
                the 2017 final rule with unit cost estimates updated to 2018 dollars,
                and then discusses and estimates the cost effects of this rule.
                 In the 2017 FEA, OSHA estimated that training, which includes
                hazard communication training, would be conducted by in-house safety or
                supervisory staff with the use of training modules and videos and would
                last, on average, eight hours. (Note that this estimate does not
                include the time taken for hazard communication training that is
                already required by 29 CFR 1910.1200). The agency judged that
                establishments could purchase sufficient training materials at an
                average cost of $2.21 per worker, encompassing the cost of handouts,
                video presentations, and training manuals and exercises. For initial
                and periodic training, OSHA estimates an average class size of five
                workers (each at a wage of $25.92 (updated from Production Occupations,
                SOC: 51-0000)) with one instructor (at a wage of $42.19 (Median Wage
                for Training and Development Specialists, SOC: 13-1151)) over an eight
                hour period. The per-worker cost of initial training is therefore
                $277.07 ((8 x $25.92) + (8 x $42.19/5) + $2.21).
                 Annual retraining of workers is also required by the standards.
                OSHA estimates the same unit costs as for initial training, so
                retraining would require the same per-worker cost of $277.07.
                 The first type of cost savings comes from changes to the training
                provision itself, where the rule rescinds the requirement to train
                employees on emergency procedures. The agency estimates that this will
                decrease training time by 15 minutes. Other decreases in training time
                come from rescinded portions of hygiene requirements, including:
                Washing areas, change rooms, eating and drinking areas, and cross-
                contamination. The agency estimates that this would decrease needed
                training by another hour.
                 Together this would decrease the required per-employee training
                from 8 hours to 6.75 hours. Hence, the per-worker cost of initial and
                retraining is $234.13 ((6.75 x $25.92) + (6.75 x $42.19/5) + $2.21).
                 Finally, using these unit cost estimates, as well as accounting for
                industry-specific baseline compliance rates (which, as explained in
                section IV.B of this FEA, are unchanged from the 2017 FEA), and based
                on a 31.8 percent new hire rate (BLS 2020b, using the annual
                manufacturing new hire rate, as was done in the 2017 FEA, updated to
                the current rate), OSHA estimates that the revisions to the training
                requirements in the standards would result in an annualized total cost
                savings of $103,276. The breakdown of these cost savings by NAICS code
                is shown in Table IV-15 at the end of this program cost-savings
                section.
                Familiarization Costs
                 In the 2017 final rule, OSHA included familiarization costs to
                account for employers' time taken to understand the new standards. The
                changes that OSHA is making to most provisions in this final rule are
                not extensive. Employers will thus only need to spend a brief amount of
                time to review them. In the 2019 PEA, OSHA estimated that employers
                would spend one hour per firm reviewing the changed requirements. As
                this final rule results in minor distinctions from the 2019 proposed
                rule, OSHA continues to estimate employers will spend an hour per firm
                reviewing the changed requirements.
                 Table IV-14 shows the unit costs, by establishment size, of
                reviewing the changes in this rule. These costs will likely be one-time
                costs incurred during the first year after the effective date of a
                final rule resulting from this rule, but the aggregate costs are
                annualized for consistency with the other estimates for this rule.
                Based on the unit familiarization (negative) cost savings in Table IV-
                14, the total annualized
                [[Page 53983]]
                familiarization costs of this rule are estimated to be $14,480. The
                breakdown of these costs by NAICS code is in Table IV-15 at the end of
                this program cost-savings section, and these costs are reflected in the
                tables as a negative cost savings.
                 Table IV-14--Familiarization--Construction and Shipyard Assumptions and Unit Cost Savings
                ----------------------------------------------------------------------------------------------------------------
                 Establishment size (employees)
                 -----------------------------------------------
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                V. Economic Feasibility Analysis and Regulatory Flexibility
                Certification
                Economic Feasibility Analysis
                 In the 2017 FEA, OSHA concluded that the beryllium standards for
                construction and shipyards were both economically feasible (see 82 FR
                at 2471). OSHA is modifying some of the ancillary provisions in both
                standards and has concluded that the revisions would, overall, reduce
                costs for employers in both sectors (see section D, Costs of
                Compliance, in this FEA). Because the effect of this rule is a net
                reduction in costs, OSHA has determined that this rule is economically
                feasible in both the construction and shipyard sectors.
                Regulatory Flexibility Certification
                 In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
                seq. (as amended), OSHA has examined the regulatory requirements of the
                rule for construction and shipyards to determine whether they would
                have a significant economic impact on a substantial number of small
                entities. This rule would modify certain ancillary provisions for
                shipyards and construction, resulting in a reduction of overall costs.
                Furthermore, the agency believes that this rule would not impose any
                additional costs on small entities. Accordingly, OSHA certifies that
                the rule would not have a significant economic impact on a substantial
                number of small entities.
                VI. OMB Review Under the Paperwork Reduction Act of 1995
                A. Overview
                 OSHA is updating the beryllium standards for the construction and
                shipyards industries, which contain collections of information that are
                subject to review by the Office of Management and Budget (OMB) under
                the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and
                OMB regulations at 5 CFR part 1320. The beryllium standards for general
                industry (29 CFR 1910.1024), construction (29 CFR 1926.1124), and
                shipyards (29 CFR 1915.1024) contain collection of information
                (paperwork) requirements that have been previously approved by OMB
                under OMB control number 1218-0267. In this rulemaking, OSHA is
                separating the collections of information in the beryllium standards
                for construction and shipyards from those in the general industry
                standard. Therefore, the agency is submitting two new information
                collection requests (ICRs)--one for the construction industry and one
                for the shipyards sector. In addition, OSHA is removing the collections
                of information related to construction and shipyards from the
                collections of information currently approved by OMB under control
                number 1218-0267. This will be a separate action and will occur after
                OMB approval of the new ICRs.
                 The PRA defines ``collection of information'' to mean the
                obtaining, causing to be obtained, soliciting, or requiring the
                disclosure to third parties or the public, of facts or opinions by or
                for an agency, regardless of form or format (44 U.S.C. 3502(3)(A)).
                Under the PRA, a Federal agency cannot conduct or sponsor a collection
                of information unless OMB approves it, and the agency displays a
                currently valid OMB control number (44 U.S.C. 3507). Also,
                [[Page 53989]]
                notwithstanding any other provision of law, no employer shall be
                subject to penalty for failing to comply with a collection of
                information if the collection of information does not display a
                currently valid OMB control number (44 U.S.C. 3512).
                 On January 9, 2017, OSHA published a final rule for the general
                industry, construction, and shipyard sectors that established new
                permissible exposure limits and other provisions to protect employees
                from beryllium exposure, such as requirements for exposure assessment,
                respiratory protection, personal protective clothing and equipment,
                housekeeping, medical surveillance, hazard communication, and
                recordkeeping. OMB approved the collections of information contained in
                the final rule under OMB Control Number 1218-0267.
                 On October 8, 2019, OSHA published a proposed rule to modify the
                construction and shipyard standards by clarifying certain provisions to
                improve and simplify compliance (84 FR 53902). The 2019 proposal would
                revise the collections of information contained in the construction and
                shipyard standard approved by OMB by clarifying requirements related to
                the written exposure control plan; the cleaning and replacement of
                personal protection equipment; the disposal, recycling, and reuse of
                contaminated materials; the frequency of medical examinations for
                employees who have been exposed to beryllium during an emergency or who
                show signs and symptoms of CBD; referrals to the CBD diagnostic center;
                and the collection and recording of social security numbers in medical
                surveillance and recordkeeping. OSHA prepared and submitted two new
                ICRs to OMB under the 2019 proposed rule for review in accordance with
                44 U.S.C. 3507(d). OSHA proposed to separate the construction and
                shipyard sectors from the 2017 Beryllium ICR approved by OMB under OMB
                Control Number 1218-0267. The three beryllium standards would have
                separate OMB control numbers for each industry.
                B. Solicitation of Comments
                 In accordance with the PRA (44 U.S.C. 3506(c)(2)), the agency
                solicited public comments on the collection of information contained in
                the 2019 proposed rule. OSHA encouraged commenters to submit their
                comments on the information collection requirements contained in the
                proposed rule under docket number OSHA-2019-0006, along with their
                comments on other parts of the proposed rule. In addition to generally
                soliciting comments on the collection of information requirements, the
                proposed rule indicated that OSHA and OMB were particularly interested
                in comments on the following items:
                 Whether the proposed collections of information are
                necessary for the proper performance of the functions of the agency,
                including whether the information will have practical utility;
                 The accuracy of OSHA's estimate of the burden (time and
                cost) of the proposed collections of information, including the
                validity of the methodology and assumptions used;
                 The quality, utility, and clarity of the information to be
                collected; and
                 Ways to minimize the compliance burden on employers, for
                example, by using automated or other technological techniques for
                collecting and transmitting information (78 FR at 56438).
                 On November 8, 2019, OMB issued a Notice of Action (NOA) assigning
                the information collection requests new OMB control numbers and
                stating, ``This OMB action is not an approval to conduct or sponsor an
                information collection under the Paperwork Reduction Act of 1995. This
                action has no effect on any current approvals. If OMB has assigned this
                ICR a new OMB Control Number, the OMB Control Number will not appear in
                the active inventory. For future submissions of this information
                collection, reference the OMB Control Number provided. OMB is
                withholding approval at this time. Prior to publication of the final
                rule, the agency should provide a summary of any comments related to
                the information collection and their response, including any changes
                made to the ICR as a result of comments. In addition, the agency must
                enter the correct burden estimates.'' At this time, the ICR for the
                beryllium standard for construction was assigned OMB Control Number
                1218-0273 and the beryllium standard for shipyards was assigned OMB
                Control Number 1218-0272. Copies of the proposed ICRs are available to
                the public at http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0273 and http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0272.
                 OSHA did not receive any public comments in response to the
                proposed ICRs.\59\ However, the agency received 16 public comments on
                the proposed rule during the initial comment period. In addition, OSHA
                held a public hearing on the proposal on December 3, 2019, where the
                agency heard testimony from several stakeholders (see Document ID 2222;
                2223). Participants who filed notices of intention to appear at the
                hearing were permitted to submit additional evidence and data relevant
                to the proceedings for a period of 44-days following the hearing. That
                post-hearing comment period closed on January 16, 2020. The record
                remained open for an additional 15 days, until January 31, 2020, for
                the submission of final briefs, arguments, and summations. OSHA
                received twenty five timely comments during this rulemaking by the
                close of the last post-hearing comment period of January 31, 2020. The
                comments submitted in response to the proposed rule and the hearing
                proceedings did modify some provisions containing collections of
                information. These responses were considered when OSHA prepared these
                two new ICRs for the final rule.
                ---------------------------------------------------------------------------
                 \59\ Two commenters submitted comments to docket number OSHA-
                2019-0006 (see Document ID OSHA-2019-0006-0003; OSHA-2019-0006-
                0004). The comments did not concern the paperwork requirements but
                rather addressed other portions of the proposal. Neither comment was
                submitted during the comment period for the proposed rule, which
                ended on November 7, 2019.
                ---------------------------------------------------------------------------
                C. Information Collection Requirements
                 As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
                following paragraphs provide information about these two ICRs.
                 Construction (ICR):
                 1. Title: Occupational Exposure to Beryllium for the Construction
                Industry (29 CFR 1926.1124).
                 2. Description of the ICR: The final rule separates the information
                collection requirements of the construction standard from the currently
                approved beryllium ICR. This action creates a new ICR containing only
                the collection of information requirements for the construction
                industry.
                 3. Brief Summary of the Information Collection Requirements:
                 The final rule revises the collection of information requirements
                contained in the existing ICR for the construction industry, approved
                under OMB under control number 1218-0267. OSHA, first, has separated
                the construction collection of information requirements from those of
                the general industry and shipyards standards and created a new ICR
                containing only those collection of information requirements in the
                construction industry. As a result, OMB has assigned a new OMB control
                number specific to the construction standard (1218-0273). Next, OSHA
                has updated the new ICR to reflect revisions made by this final rule,
                which (1) remove provisions in the construction standard that require
                employers to collect and record employees' social security number; (2)
                revise the contents
                [[Page 53990]]
                of the written exposure control plan; and (3) remove certain
                requirements related to written warnings. See Table VI.1.
                 Table VI.1--Collection of Information Requirements Being Revised in the Beryllium Standard for Construction
                ----------------------------------------------------------------------------------------------------------------
                 Currently approved collection of
                 Section number and title information requirements Action taken
                ----------------------------------------------------------------------------------------------------------------
                Sec. 1926.1124(f)(1)(i)--Methods of A list of operations and job Revised paragraph
                 Compliance--Written Exposure Control titles reasonably expected to involve (f)(1)(i)(A) to list
                 Plan. airborne exposure to or dermal contact operations and job titles
                 with beryllium; and removed ``airborne'' and
                 ``or dermal contact'' from
                 the text.
                 A list of operations and job Removed paragraphs
                 titles reasonably expected to involve (f)(1)(i)(B) through (E),
                 airborne exposure at or above the action written exposure control
                 level; plan.
                 A list of operations and job .............................
                 titles reasonably expected to involve
                 airborne exposure above the TWA PEL or
                 STEL;
                 Procedures for minimizing cross- .............................
                 contamination;
                 Procedures for minimizing the .............................
                 migration of beryllium within or to
                 locations outside the workplace;
                 A list of engineering controls, Added a new requirement,
                 work practices, and respiratory paragraph (f)(1)(i)(E), to
                 protection required by Sec. list procedures used to
                 1926.1124(f)(2); ensure the integrity of each
                 containment used to minimize
                 exposures to employees
                 outside the containment.
                 A list of personal protective .............................
                 clothing and equipment required by Sec.
                 1926.1124(h);
                 Procedures for removing, .............................
                 laundering, storing, cleaning, repairing,
                 and disposing of beryllium-contaminated
                 personal protective clothing and
                 equipment, including respirators;
                 Procedures used to restrict Revised paragraph
                 access to work areas when airborne (f)(1)(i)(H) to require a
                 exposures are, or can reasonably be list procedures for
                 expected to be, above the TWA PEL or removing, cleaning, and
                 STEL, to minimize the number of employees maintaining personal
                 exposed to airborne beryllium and their protective clothing and
                 level of exposure, including exposures equipment in accordance with
                 generated by other employers or sole paragraph (h) and renumbered
                 proprietors. as paragraph (f)(1)(i)(F).
                Sec. 1926.1124(f)(1)(ii)(B)-- The employer is notified that an employee Removed ``airborne'' and ``or
                 Methods of Compliance--Written is eligible for medical removal in dermal contact with'' from
                 Exposure Control Plan. accordance with Sec. 1926.1124(l)(1), paragraph (f)(1)(ii)(B).
                 referred for evaluation at a chronic
                 beryllium disease (CBD) diagnostic
                 center, or shows signs or symptoms
                 associated with airborne exposure to or
                 dermal contact with beryllium.
                Sec. 1926.1124(h)(2)(v)--Personal When personal protective clothing or Removed this labeling
                 Protective Clothing and Equipment-- equipment required by this standard is requirement from the
                 Removal and Storage. removed from the workplace for beryllium standard for
                 laundering, cleaning, maintenance or construction and therefore
                 disposal, the employer must ensure that from the ICR.
                 personal protective clothing and
                 equipment are stored and transported in
                 sealed bags or other closed containers
                 that are impermeable and are labeled in
                 accordance with Sec. 1926.1124(m)(3)
                 and the HCS (29 CFR 1910.1200).
                Sec. 1926.1124(h)(3)(iii)--Personal The employer must inform in writing the Removed this requirement from
                 Protective Clothing and Equipment-- persons or the business entities who the beryllium standard for
                 Cleaning and Replacement. launder, clean or repair the personal construction and therefore
                 protective clothing or equipment required from the ICR.
                 by this standard of the potentially
                 harmful effects of airborne exposure to
                 and dermal contact with beryllium and
                 that the personal protective clothing and
                 equipment must be handled in accordance
                 with the standard.
                Sec. 1926.1124(j)(3)--Housekeeping-- When the employer transfers materials Removed this requirement from
                 Disposal. containing beryllium to another party for the beryllium standard for
                 use or disposal, the employer must construction and therefore
                 provide the recipient with a copy of the from the ICR.
                 warning described in Sec.
                 1926.1124(m)(2).
                Sec. 1926.1124(k)(1)(i)(C)--Medical Who is exposed to beryllium during an Removed paragraph
                 Surveillance. emergency. (k)(1)(i)(C) from the
                 beryllium standard for
                 construction and therefore
                 from the ICR. Renumbered
                 former paragraph
                 (k)(1)(i)(D) as
                 (k)(1)(i)(C).
                Sec. 1926.1124(k)(2)(i)(B)--Medical An employee meets the criteria of Sec. Removed ``or (C)'' from
                 Surveillance. 1926.1124(k)(1)(i)(B) or (C). paragraph (k)(2)(i)(B) from
                 the beryllium standard for
                 construction and therefore
                 from the ICR.
                [[Page 53991]]
                
                Sec. 1926.1124(k)(2)(ii)--Medical At least every two years thereafter for Replaced ``(D)'' with ``(C)''
                 Surveillance. each employee who continues to meet the in paragraph.
                 criteria of Sec. 1926.1124(k)(1)(i)(A),
                 (B), or (D).
                Sec. 1926.1124(k)(3)(ii)(A)-- A medical and work history, with emphasis Revised paragraph
                 Medical Surveillance. on past and present airborne exposure to (k)(3)(ii)(A) to remove
                 or dermal contact with beryllium, smoking ``airborne'' and ``or dermal
                 history, and any history of respiratory contact'' from the text.
                 system dysfunction.
                Sec. 1926.1124(k)(4)(i)-- A description of the employee's former and Revised paragraph (k)(4)(i)
                 Information Provided to the PLHCP. current duties that relate to the to remove ``airborne'' and
                 employee's airborne exposure and dermal ``and dermal contact with''
                 contact with beryllium. from the text.
                Sec. 1926.1124(k)(7)--Medical The employer must provide an evaluation at Revised the initial
                 Surveillance--Referral to the CBD no cost to the employee at a CBD consultation with the CBD
                 Diagnostic Center. diagnostic center that is mutually agreed diagnostic center, as
                 upon by the employer and the employee. follows:
                 The examination must be provided within
                 30 days of either of the events in Sec.
                 1926.1124(k)(7)(i)(A) or (B).
                 .......................................... The employer must provide an
                 evaluation at no cost to the
                 employee at a CBD diagnostic
                 center that is mutually
                 agreed upon by the employer
                 and the employee. The
                 evaluation at the CBD
                 diagnostic center must be
                 scheduled within 30 days,
                 and must occur within a
                 reasonable time, of:
                 .......................................... Added a new requirement in
                 paragraph (k)(7)(ii) that
                 the evaluation must include
                 any tests deemed appropriate
                 by the examining physician
                 at the CBD diagnostic
                 center, such as pulmonary
                 function testing (as
                 outlined by the American
                 Thoracic Society criteria),
                 bronchoalveolar lavage
                 (BAL), and transbronchial
                 biopsy. If any of the tests
                 deemed appropriate by the
                 examining physician are not
                 available at the CBD
                 diagnostic center, they may
                 be performed at another
                 location that is mutually
                 agreed upon by the employer
                 and the employee.
                 .......................................... As result of the changes,
                 OSHA renumbered the
                 subordinate paragraphs in
                 (k)(7).
                Sec. 1926.1124(m)(2)--Warning Consistent with the HCS (29 CFR Removed this requirement from
                 labels. 1910.1200), the employer must label each the beryllium standard for
                 bag and container of clothing, equipment, construction and therefore
                 and materials contaminated with from the ICR.
                 beryllium, and must, at a minimum,
                 include the following on the label:
                 DANGER .............................
                 CONTAINS BERYLLIUM .............................
                 MAY CAUSE CANCER .............................
                 CAUSES DAMAGE TO LUNGS .............................
                 AVOID CREATING DUST .............................
                 DO NOT GET ON SKIN .............................
                Sec. 1926.1124(m)(3)(i)--Employee For each employee who has, or can Removed ``airborne'' and
                 information and training. reasonably be expected to have, airborne ``and dermal contact with''
                 exposure to or dermal contact with from paragraph (m)(3)(i).
                 beryllium
                Sec. 1926.1124(n)(1)(ii)(F)-- The name, social security number, and job Removed the requirement to
                 Recordkeeping--Air Monitoring Data. classification of each employee collect and record social
                 represented by the monitoring, indicating security numbers, as
                 which employees were actually monitored. follows:
                 .......................................... The name and job
                 classification of each
                 employee represented by the
                 monitoring, indicating which
                 employees were actually
                 monitored.
                Sec. 1926.1124(n)(3)(ii)(A)-- The record must include the following Removed the requirement to
                 Recordkeeping--Medical Surveillance. information about the employee: Name, collect and record social
                 social security number, and job security numbers, as
                 classification. follows:
                 .......................................... The record must include the
                 following information about
                 the employee: Name and job
                 classification.
                [[Page 53992]]
                
                Sec. 1926.1124(n)(4)(i)-- At the completion of any training required Removed the requirement to
                 Recordkeeping--Training. by the standard, the employer must collect and record social
                 prepare a record that indicates the name, security numbers, as
                 social security number, and job follows:
                 classification of each employee trained,
                 the date the training was completed, and
                 the topic of the training.
                 .......................................... At the completion of any
                 training required by the
                 standard, the employer must
                 prepare a record that
                 indicates the name and job
                 classification of each
                 employee trained, the date
                 the training was completed,
                 and the topic of the
                 training.
                ----------------------------------------------------------------------------------------------------------------
                 4. OMB Control Number: 1218-0273.
                 5. Affected Public: Business or other-for-profit. This standard
                applies to employers in the construction industry who have employees
                that may have occupational exposures to any form of beryllium,
                including compounds and mixtures, except those articles and materials
                exempted by paragraphs (a)(2) and (3) of the standard.
                 6. Number of Respondents: 2,100.
                 7. Frequency of Responses: On occasion, quarterly, semi-annually,
                annual, biannual.
                 8. Number of Reponses: 29,330.
                 9. Average Time per Response: Varies.
                 10. Estimated Annual Total Burden Hours: 18,075.
                 11. Estimated Annual Total Cost (Capital-operation and
                maintenance): $5,611,902.
                 Shipyards (ICR):
                 1. Title: Occupational Exposure to Beryllium for the Shipyards
                Sector (29 CFR 1915.1024).
                 2. Description of the ICR: The final rule separates information
                collection requirements of the shipyards standard from the currently
                approved beryllium ICR. This action creates a new ICR containing only
                the collection of information requirements for the shipyard sector.
                 3. Brief Summary of the Information Collection Requirements:
                 This final rule revises the collection of information requirements
                contained in the existing ICR for the shipyards industry, approved
                under OMB under control number 1218-0267. OSHA, first, has separated
                the shipyards collection of information requirements from those of the
                general industry and construction standards and created a new ICR
                containing only those collection of information requirements in the
                shipyard sectors. As a result, OMB has assigned a new OMB control
                number specific to the shipyards standard (1218-0272). Next, OSHA has
                updated the new ICR to reflect revisions made by this final rule, which
                (1) remove provisions in the shipyards standard that require employers
                to collect and record employees' social security number; (2) revise the
                contents of the written exposure control plan; and (3) remove certain
                requirements related to written warnings. See Table VI.2.
                 Table VI.2--Collection of Information Requirements Being Revised in the Beryllium Standard for Shipyards
                ----------------------------------------------------------------------------------------------------------------
                 Currently approved collection of
                 Section number and title information requirements Action taken
                ----------------------------------------------------------------------------------------------------------------
                Sec. 1915.1024(f)(1)(i)--Methods of The employer must establish, implement, Revised paragraph
                 Compliance--Written Exposure Control and maintain a written exposure control (f)(1)(i)(A) to list
                 Plan. plan, which must contain: operations and job titles
                 reasonably expected to
                 involve exposure to
                 beryllium.
                 A list of operations and job .............................
                 titles reasonably expected to involve
                 exposure to or dermal contact with
                 beryllium;
                 A list of operations and job Removed paragraphs
                 titles reasonably expected to involve (f)(1)(i)(B) through (E) the
                 airborne exposure at or above the AL; written exposure control
                 plan.
                 A list of operations and job .............................
                 titles reasonably expected to involve
                 airborne exposure above the TWA PEL or
                 STEL;
                 Procedures for minimizing cross- Added a new requirement,
                 contamination; paragraph (f)(1)(i)(D) to
                 list procedures used to
                 ensure the integrity of each
                 containment used to minimize
                 exposures to employees
                 outside the containment.
                 Procedures for minimizing the .............................
                 migration of beryllium within or to
                 locations outside the workplace;
                 A list of engineering controls, .............................
                 work practices, and respiratory
                 protection required by Sec.
                 1915.1024(f)(2);
                [[Page 53993]]
                
                 A list of personal protective Revised paragraph
                 clothing and equipment required by Sec. (f)(1)(i)(H) to require a
                 1915.1024(h); and list procedures for
                 removing, cleaning, and
                 maintaining personal
                 protective clothing and
                 equipment in accordance with
                 paragraph (h) and renumbered
                 as paragraph (f)(1)(i)(E).
                 Procedures for removing, .............................
                 laundering, storing, cleaning, repairing,
                 and disposing of beryllium-contaminated
                 personal protective clothing and
                 equipment, including respirators.
                Sec. 1915.1024(f)(1)(ii)(B)-- The employer is notified that an employee Removed ``airborne'' and ``or
                 Methods of Compliance--Written is eligible for medical removal in dermal contact with'' from
                 Exposure Control Plan. accordance with Sec. 1915.1024(l)(1), paragraph (f)(1)(ii)(B).
                 referred for evaluation at a chronic
                 beryllium disease (CBD) diagnostic
                 center, or shows signs or symptoms
                 associated with airborne exposure to or
                 dermal contact with beryllium.
                Sec. 1915.1024(h)(2)(v)--Personal When personal protective clothing or Removed this labeling
                 Protective Clothing and Equipment-- equipment required by this standard is requirement from the
                 Removal and Storage. removed from the workplace for beryllium standard for
                 laundering, cleaning, maintenance or shipyards and therefore from
                 disposal, the employer must ensure that the ICR.
                 personal protective clothing and
                 equipment are stored and transported in
                 sealed bags or other closed containers
                 that are impermeable and are labeled in
                 accordance with Sec. 1915.1024(m)(3)
                 and the HCS (29 CFR 1910.1200).
                Sec. 1915.1024(h)(3)(iii)--Personal The employer must inform in writing the Removed this requirement from
                 Protective Clothing and Equipment-- persons or the business entities who the beryllium standard for
                 Cleaning and Replacement. launder, clean or repair the personal shipyards and therefore from
                 protective clothing or equipment required the ICR.
                 by this standard of the potentially
                 harmful effects of airborne exposure to
                 and dermal contact with beryllium and
                 that the personal protective clothing and
                 equipment must be handled in accordance
                 with the standard.
                Sec. 1915.1024(j)(3)--Housekeeping-- When the employer transfers materials Removed this requirement from
                 Disposal. containing beryllium to another party for the beryllium standard for
                 use or disposal, the employer must shipyards and therefore from
                 provide the recipient with a copy of the the ICR.
                 warning described in Sec.
                 1915.1024(m)(2).
                Sec. 1915.1024(k)(1)(i)(C)--Medical Who is exposed to beryllium during an Removed paragraph
                 Surveillance. emergency. (k)(1)(i)(C) from the
                 beryllium standard for
                 construction and therefore
                 from the ICR. Renumbered
                 former paragraph
                 (k)(1)(i)(D) as
                 (k)(1)(i)(C).
                Sec. 1915.1124(k)(2)(i)(B)--Medical An employee meets the criteria of Sec. Removed ``or (C) of this
                 Surveillance. 1915.1024(k)(1)(i)(B) or (C). standard'' from paragraph
                 (k)(2)(i)(B) from the
                 beryllium standard for
                 construction and therefore
                 from the ICR.
                Sec. 1915.1124(k)(2)(ii)--Medical At least every two years thereafter for Replaced ``(D)'' with ``(C)''
                 Surveillance. each employee who continues to meet the in paragraph (k)(2)(ii).
                 criteria of Sec. 1915.1024(k)(1)(i)(A),
                 (B), or (D).
                Sec. 1915.1124(k)(3)(ii)(A)-- A medical and work history, with emphasis Revised paragraph
                 Medical Surveillance. on past and present airborne exposure to (k)(3)(ii)(A) to remove
                 or dermal contact with beryllium, smoking ``airborne'' and ``or dermal
                 history, and any history of respiratory contact with'' from the
                 system dysfunction. text.
                Sec. 1915.1124(k)(4)(i)-- A description of the employee's former and Revised paragraph (k)(4)(i)
                 Information Provided to the PLHCP. current duties that relate to the to remove ``airborne'' and
                 employee's airborne exposure and dermal ``and dermal contact with''
                 contact with beryllium. from the text.
                Sec. 1915.1024(k)(7)--Medical The employer must provide an evaluation at Revised an initial
                 Surveillance-- Referral to the CBD no cost to the employee at a CBD consultation with the CBD
                 Diagnostic Center. diagnostic center that is mutually agreed diagnostic center.
                 upon by the employer and the employee.
                 The examination must be provided within
                 30 days of either of the events in Sec.
                 1915.1024(k)(7)(i)(A) or (B).
                 .......................................... The employer must provide an
                 evaluation at no cost to the
                 employee at a CBD diagnostic
                 center that is mutually
                 agreed upon by the employer
                 and the employee. The
                 evaluation at the CBD
                 diagnostic center must be
                 scheduled within 30 days,
                 and must occur within a
                 reasonable time, of:
                [[Page 53994]]
                
                 .......................................... Added a new requirement in
                 paragraph (k)(7)(ii) that
                 the evaluation must include
                 any tests deemed appropriate
                 by the examining physician
                 at the CBD diagnostic
                 center, such as pulmonary
                 function testing (as
                 outlined by the American
                 Thoracic Society criteria),
                 bronchoalveolar lavage
                 (BAL), and transbronchial
                 biopsy. If any of the tests
                 deemed appropriate by the
                 examining physician are not
                 available at the CBD
                 diagnostic center, they may
                 be performed at another
                 location that is mutually
                 agreed upon by the employer
                 and the employee.
                 .......................................... As result of the changes,
                 OSHA renumbered the
                 subordinate paragraphs in
                 (k)(7).
                Sec. 1915.1024(m)(2)--Warning Consistent with the HCS (29 CFR Removed this requirement from
                 labels. 1910.1200), the employer must label each the beryllium standard for
                 bag and container of clothing, equipment, construction and therefore
                 and materials contaminated with from the ICR.
                 beryllium, and must, at a minimum,
                 include the following on the label:
                 DANGER .............................
                 CONTAINS BERYLLIUM .............................
                 MAY CAUSE CANCER .............................
                 CAUSES DAMAGE TO LUNGS .............................
                 AVOID CREATING DUST .............................
                 DO NOT GET ON SKIN .............................
                Sec. 1926.1124(m)(3)(i)--Employee For each employee who has, or can Removed ``airborne'' and
                 information and training. reasonably be expected to have, airborne ``and dermal contact with''
                 exposure to or dermal contact with from paragraph (m)(3)(i).
                 beryllium.
                Sec. 1915.1024(n)(1)(ii)(F)-- The name, social security number, and job Removed the requirement to
                 Recordkeeping --Air Monitoring Data. classification of each employee collect and record social
                 represented by the monitoring, indicating security numbers, as
                 which employees were actually monitored. follows:
                 .......................................... The name and job
                 classification of each
                 employee represented by the
                 monitoring, indicating which
                 employees were actually
                 monitored.
                Sec. 1915.1024(n)(3)(ii)(B)-- The record must include the following Remove the requirement to
                 Recordkeeping--Medical Surveillance. information about the employee: Name, collect and record social
                 social security number, and job security numbers, as
                 classification. follows: Name and job
                 classification.
                Sec. 1915.1024(n)(4)(i)-- At the completion of any training required Remove the requirement to
                 Recordkeeping--Training. by this standard, the employer must collect and record social
                 prepare a record that indicates the name, security numbers, as
                 social security number, and job follows:
                 classification of each employee trained,
                 the date the training was completed, and
                 the topic of the training.
                 .......................................... At the completion of any
                 training required by this
                 standard, the employer must
                 prepare a record that
                 indicates the name and job
                 classification of each
                 employee trained, the date
                 the training was completed,
                 and the topic of the
                 training.
                ----------------------------------------------------------------------------------------------------------------
                 4. OMB Control Number: 1218-0272.
                 5. Affected Public: Business or other-for-profit. This standard
                applies to employers in the shipyards industry who have employees that
                may have occupational exposures to any form of beryllium, including
                compounds and mixtures, except those articles and materials exempted by
                paragraphs (a)(2) and (3) of the standard.
                 6. Number of Respondents: 696.
                 7. Frequency of Responses: On occasion, quarterly, semi-annually,
                annual, biannual.
                 8. Number of Reponses: 10,794.
                 9. Average Time per Response: Varies.
                 10. Estimated Annual Total Burden Hours: 6,609.
                 11. Estimated Annual Total Cost (Capital-operation and
                maintenance): $2,057,856.
                VII. Federalism
                 OSHA reviewed this final rule in accordance with the Executive
                order on Federalism (E.O. 13132, 64 FR 43255, August 10, 1999), which
                requires that Federal agencies, to the extent possible, refrain from
                limiting State policy options, consult with States prior to taking any
                actions that would restrict State policy options, and take such actions
                only when clear constitutional and statutory authority exists and the
                problem is national in scope. E.O. 13132 provides for preemption of
                State law only with the expressed consent of Congress. Any such
                preemption is to be limited to the extent possible.
                 Under Section 18 of the OSH Act, Congress expressly provides that
                States and U.S. territories may adopt, with Federal approval, a plan
                for the development and enforcement of occupational safety and health
                [[Page 53995]]
                standards. OSHA refers to such States and territories as ``State
                Plans'' (29 U.S.C. 667). Occupational safety and health standards
                developed by State Plans must be at least as effective in providing
                safe and healthful employment and places of employment as the Federal
                standards. Subject to these requirements, State Plans are free to
                develop and enforce under State law their own requirements for safety
                and health standards.
                 OSHA previously concluded that promulgation of the beryllium
                standard complies with E.O. 13132 (82 FR at 2633), so this final rule
                complies with E.O. 13132. In States without OSHA-approved State Plans,
                Congress expressly provides for OSHA standards to preempt State
                occupational safety and health standards in areas addressed by the
                Federal standards. In these States, this final rule limits State policy
                options in the same manner as every standard promulgated by OSHA. In
                States with OSHA-approved State Plans, this rulemaking does not
                significantly limit State policy options.
                VIII. State Plans
                 When federal OSHA promulgates a new standard or more stringent
                amendment to an existing standard, the states and U.S. Territories with
                their own OSHA-approved occupational safety and health plans (State
                Plans) must promulgate a state standard adopting such new Federal
                standard, or more stringent amendment to an existing Federal standard,
                or an at least as effective equivalent thereof, within six months of
                promulgation of the new Federal standard or more stringent amendment.
                The state may demonstrate that a standard change is not necessary
                because the state standard is already the same or at least as effective
                as the Federal standard change. Because a state may include standards
                and standard provisions that are equally or more stringent than Federal
                standards, it would generally be unnecessary for a state to revoke a
                standard when the comparable Federal standard is revoked or made less
                stringent. To avoid delays in worker protection, the effective date of
                the state standard and any of its delayed provisions must be the date
                of state promulgation or the Federal effective date, whichever is
                later. The Assistant Secretary may permit a longer time period if the
                state makes a timely demonstration that good cause exists for extending
                the time limitation (29 CFR 1953.5(a)).
                 Of the 28 states and territories with OSHA-approved State Plans, 22
                cover public and private-sector employees: Alaska, Arizona, California,
                Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,
                New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,
                Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The
                remaining six states and territories cover only state and local
                government employees: Connecticut, Illinois, Maine, New Jersey, New
                York, and the Virgin Islands.
                 As discussed in detail in Section III, Summary and Explanation of
                the Final Rule, while many of the revised provisions in this final rule
                provide equivalent protection to the provisions of the 2017 standards,
                changes made by this final rule will clarify certain provisions and
                simplify or improve employer compliance, for example, by clarifying the
                medical definitions and medical surveillance provisions and aligning
                them with the general industry standard. In the July 2020 general
                industry final rule adopting many of the same clarifying revisions,
                OSHA determined, in part based on comments received, that these
                revisions enhance employee safety by ensuring provisions are not
                misinterpreted (85 FR 42595). Accordingly, OSHA determined that it was
                appropriate to require states to adopt the changes made by that final
                rule.
                 OSHA received no comments with respect to State Plans in this
                rulemaking. After considering all of the changes made by this final
                rule and the record as a whole, OSHA believes that this final rule also
                enhances employee safety, in part, by revising confusing provisions.
                Therefore, OSHA has determined that, within six months of the rule's
                promulgation date, State Plans must review their state standards and
                adopt amendments to those standards that are at least as effective as
                the amendments to the beryllium construction and shipyard standard
                finalized herein, as required by 29 CFR 1953.5(a), unless a State Plan
                demonstrates that such amendments are not necessary because their
                existing standards are already at least as effective at protecting
                workers as this final rule.
                IX. Unfunded Mandates Reform Act
                 OSHA reviewed this final rule according to the Unfunded Mandates
                Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) and Executive
                Order 13132 (64 FR 43255 (August 4, 1999)). As discussed above in
                Section IV (``Final Economic Analysis'') of this preamble, the agency
                has determined that this final rule would not impose significant
                additional costs on any private- or public-sector entity. Further, OSHA
                previously concluded that the rule would not impose a federal mandate
                on the private sector in excess of $100 million (adjusted annually for
                inflation) in expenditures in any one year (82 FR at 2634).
                Accordingly, this final rule will not require significant additional
                expenditures by either public or private employers.
                 As noted above under Section VIII, (``State-Plans''), the agency's
                standards do not apply to State and local governments except in states
                that have elected voluntarily to adopt a State Plan approved by the
                agency. Consequently, this final rule does not meet the definition of a
                ``Federal intergovernmental mandate'' (see Section 421(5) of the UMRA
                (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the agency
                certifies that this final rule does not mandate that state, local, or
                tribal governments adopt new, unfunded regulatory obligations of, or
                increase expenditures by the private sector by, more than $100 million
                in any year.
                X. Environmental Impacts
                 OSHA has reviewed this final rule according to the National
                Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the
                regulations of the Council on Environmental Quality (40 CFR part 1500),
                and the Department of Labor's NEPA procedures (29 CFR part 11). OSHA
                has determined that this final rule will have no significant impact on
                air, water, or soil quality; plant or animal life; the use of land; or
                aspects of the external environment.
                XI. Consultation and Coordination With Indian Tribal Governments
                 OSHA reviewed this final rule in accordance with E.O. 13175 (65 FR
                67249) and determined that it does not have ``tribal implications'' as
                defined in that order. This final rule does not have substantial direct
                effects on one or more Indian tribes, on the relationship between the
                Federal Government and Indian tribes, or on the distribution of power
                and responsibilities between the Federal Government and Indian tribes.
                List of Subjects in 29 CFR Parts 1915 and 1926
                 Beryllium, Cancer, Chemicals, Hazardous substances, Health,
                Occupational safety and health.
                Authority and Signature
                 This document was prepared under the direction of Loren Sweatt,
                Principal Deputy Assistant Secretary of Labor for Occupational Safety
                and Health, U.S. Department of Labor, Washington, DC 20210.
                [[Page 53996]]
                 The agency issues the sections under the following authorities: 29
                U.S.C. 653, 655, 657; 40 U.S.C. 3704; 33 U.S.C. 941; Secretary of
                Labor's Order 1-2012 (77 FR 3912 (January 25, 2012)); and 29 CFR part
                1911.
                 Signed at Washington, DC, on August 13, 2020.
                Loren Sweatt,
                Principal Deputy Assistant Secretary of Labor for Occupational Safety
                and Health.
                Amendments to Standards
                 For the reasons set forth in the preamble, chapter XVII of title
                29, parts 1915 and 1926, of the Code of Federal Regulations is amended
                as follows:
                PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD
                EMPLOYMENT
                0
                1. The authority citation for part 1915 continues to read as follows:
                 Authority: 33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of
                Labor's Order No. 12-71 (36 FR 8754); 8-76 (41 FR 25059), 9-83 (48
                FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
                50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR
                55355), or 1-2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553,
                as applicable.
                0
                2. Amend Sec. 1915.1024 by:
                0
                a. In paragraph (b), add a definition for ``Beryllium sensitization''
                in alphabetical order, revise the definitions for ``CBD diagnostic
                center,'' ``Chronic beryllium disease (CBD),'' and ``Confirmed
                positive,'' and remove the definitions of ``Emergency'' and ``High-
                efficiency particulate air (HEPA) filter.''
                0
                b. Revise paragraph (f)(1)(i)(A).
                0
                c. Remove paragraphs (f)(1)(i)(B), (C), (D), (E), and (H).
                0
                d. Redesignate paragraphs (f)(1)(i)(F) and (G) as paragraphs
                (f)(1)(i)(B) and (C).
                0
                e. In newly redesignated paragraph (f)(1)(i)(C), remove the word
                ``and'' at the end of the paragraph;
                0
                f. Add new paragraphs (f)(1)(i)(D) and (E).
                0
                g. Revise paragraphs (f)(1)(ii)(B), (f)(2), and (g)(1)(iii).
                0
                h. Remove paragraph (g)(1)(iv).
                0
                i. Redesignate paragraph (g)(1)(v) as paragraph (g)(1)(iv).
                0
                j. Revise paragraphs (h)(1) and (2) and (h)(3)(ii).
                0
                k. Remove paragraph (h)(3)(iii).
                0
                l. Remove and reserve paragraph (i).
                0
                m. Revise paragraphs (j) and (k)(1)(i)(B).
                0
                n. Remove paragraph (k)(1)(i)(C).
                0
                o. Redesignate paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C).
                0
                p. Revise paragraphs (k)(2)(i)(B), (k)(2)(ii), (k)(3)(ii)(A),
                (k)(4)(i), and (k)(7)(i) introductory text.
                0
                q. Redesignate paragraphs (k)(7)(ii) through (v) as paragraphs
                (k)(7)(iii) through (vi).
                0
                r. Add a new paragraph (k)(7)(ii).
                0
                s. Revise paragraph (m)(1)(ii).
                0
                t. Remove paragraph (m)(3).
                0
                u. Redesignate paragraph (m)(4) as paragraph (m)(3).
                0
                v. Revise newly redesignated paragraphs (m)(3)(i) introductory text and
                (m)(3)(ii)(A).
                0
                w. Remove newly redesignated paragraph (m)(3)(ii)(D).
                0
                x. Further redesignate newly redesignated paragraphs (m)(3)(ii)(E)
                through (I) as paragraphs (m)(3)(ii)(D) through (H).
                0
                z. Revise newly redesignated paragraphs (m)(3)(ii)(D) and (m)(3)(iv)
                and paragraphs (n)(1)(ii)(F), (n)(3)(ii)(A), and (n)(4)(i).
                 The revisions and additions read as follows:
                Sec. 1915.1024 Beryllium.
                * * * * *
                 (b) * * *
                 Beryllium sensitization means a response in the immune system of a
                specific individual who has been exposed to beryllium. There are no
                associated physical or clinical symptoms and no illness or disability
                with beryllium sensitization alone, but the response that occurs
                through beryllium sensitization can enable the immune system to
                recognize and react to beryllium. While not every beryllium-sensitized
                person will develop chronic beryllium disease (CBD), beryllium
                sensitization is essential for development of CBD.
                 CBD diagnostic center means a medical diagnostic center that has a
                pulmonologist or pulmonary specialist on staff and on-site facilities
                to perform a clinical evaluation for the presence of chronic beryllium
                disease (CBD). The CBD diagnostic center must have the capacity to
                perform pulmonary function testing (as outlined by the American
                Thoracic Society criteria), bronchoalveolar lavage (BAL), and
                transbronchial biopsy. The CBD diagnostic center must also have the
                capacity to transfer BAL samples to a laboratory for appropriate
                diagnostic testing within 24 hours. The pulmonologist or pulmonary
                specialist must be able to interpret the biopsy pathology and the BAL
                diagnostic test results.
                 Chronic beryllium disease (CBD) means a chronic granulomatous lung
                disease caused by inhalation of airborne beryllium by an individual who
                is beryllium-sensitized.
                 Confirmed positive means the person tested has had two abnormal
                BeLPT test results, an abnormal and a borderline test result, or three
                borderline test results from tests conducted within a 3-year period. It
                also means the result of a more reliable and accurate test indicating a
                person has been identified as having beryllium sensitization.
                * * * * *
                 (f) * * *
                 (1) * * *
                 (i) * * *
                 (A) A list of operations and job titles reasonably expected to
                involve exposure to beryllium;
                * * * * *
                 (D) Procedures used to ensure the integrity of each containment
                used to minimize exposures to employees outside of the containment; and
                 (E) Procedures for removing, cleaning, and maintaining personal
                protective clothing and equipment in accordance with paragraph (h) of
                this standard.
                 (ii) * * *
                 (B) The employer is notified that an employee is eligible for
                medical removal in accordance with paragraph (l)(1) of this standard,
                referred for evaluation at a CBD diagnostic center, or shows signs or
                symptoms associated with exposure to beryllium; or
                * * * * *
                 (2) Engineering and work practice controls. The employer must use
                engineering and work practice controls to reduce and maintain employee
                airborne exposure to beryllium to or below the TWA PEL and STEL, unless
                the employer can demonstrate that such controls are not feasible.
                Wherever the employer demonstrates that it is not feasible to reduce
                airborne exposure to or below the PELs with engineering and work
                practice controls, the employer must implement and maintain engineering
                and work practice controls to reduce airborne exposure to the lowest
                levels feasible and supplement these controls by using respiratory
                protection in accordance with paragraph (g) of this standard.
                * * * * *
                 (g) * * *
                 (1) * * *
                 (iii) During operations for which an employer has implemented all
                feasible engineering and work practice controls when such controls are
                not sufficient to reduce airborne exposure to or below the TWA PEL or
                STEL; and
                * * * * *
                 (h) * * *
                 (1) Provision and use. Where airborne exposure exceeds, or can
                reasonably be expected to exceed, the TWA PEL or STEL, the employer
                must provide at no cost, and ensure that each employee uses,
                appropriate personal protective
                [[Page 53997]]
                clothing and equipment in accordance with the written exposure control
                plan required under paragraph (f)(1) of this standard and OSHA's
                Personal Protective Equipment standards for shipyards (subpart I of
                this part).
                 (2) Removal of personal protective clothing and equipment. (i) The
                employer must ensure that each employee removes all personal protective
                clothing and equipment required by this standard at the end of the work
                shift or at the completion of all tasks involving beryllium, whichever
                comes first.
                 (ii) The employer must ensure that personal protective clothing and
                equipment required by this standard is not removed in a manner that
                disperses beryllium into the air, and is removed as specified in the
                written exposure control plan required by paragraph (f)(1) of this
                standard.
                 (iii) The employer must ensure that no employee with reasonably
                expected exposure above the TWA PEL or STEL removes personal protective
                clothing and equipment required by this standard from the workplace
                unless it has been cleaned in accordance with paragraph (h)(3)(ii) of
                this standard.
                 (3) * * *
                 (ii) The employer must ensure that beryllium is not removed from
                personal protective clothing and equipment required by this standard by
                blowing, shaking, or any other means that disperses beryllium into the
                air.
                * * * * *
                 (j) Housekeeping. (1) When cleaning dust resulting from operations
                that cause, or can reasonably be expected to cause, airborne exposure
                above the TWA PEL or STEL, the employer must ensure the use of methods
                that minimize the likelihood and level of airborne exposure.
                 (2) The employer must not allow dry sweeping or brushing for
                cleaning up dust resulting from operations that cause, or can
                reasonably be expected to cause, airborne exposure above the TWA PEL or
                STEL unless methods that minimize the likelihood and level of airborne
                exposure are not safe or effective.
                 (3) The employer must not allow the use of compressed air for
                cleaning where the use of compressed air causes, or can reasonably be
                expected to cause, airborne exposure above the TWA PEL or STEL.
                 (4) Where employees use dry sweeping, brushing, or compressed air
                to clean, the employer must provide, and ensure that each employee
                uses, respiratory protection and personal protective clothing and
                equipment in accordance with paragraphs (g) and (h) of this standard.
                 (5) The employer must ensure that cleaning equipment is handled and
                maintained in a manner that minimizes the likelihood and level of
                airborne exposure and the re-entrainment of airborne beryllium in the
                workplace.
                 (k) * * *
                 (1) * * *
                 (i) * * *
                 (B) Who shows signs or symptoms of CBD or other beryllium-related
                health effects; or
                * * * * *
                 (2) * * *
                 (i) * * *
                 (B) An employee meets the criteria of paragraph (k)(1)(i)(B) of
                this standard.
                 (ii) At least every two years thereafter for each employee who
                continues to meet the criteria of paragraph (k)(1)(i)(A), (B), or (C)
                of this standard.
                * * * * *
                 (3) * * *
                 (ii) * * *
                 (A) A medical and work history, with emphasis on past and present
                exposure to beryllium, smoking history, and any history of respiratory
                system dysfunction;
                * * * * *
                 (4) * * *
                 (i) A description of the employee's former and current duties that
                relate to the employee's exposure to beryllium;
                * * * * *
                 (7) * * *
                 (i) The employer must provide an evaluation at no cost to the
                employee at a CBD diagnostic center that is mutually agreed upon by the
                employer and the employee. The evaluation at the CBD diagnostic center
                must be scheduled within 30 days, and must occur within a reasonable
                time, of:
                * * * * *
                 (ii) The evaluation must include any tests deemed appropriate by
                the examining physician at the CBD diagnostic center, such as pulmonary
                function testing (as outlined by the American Thoracic Society
                criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If
                any of the tests deemed appropriate by the examining physician are not
                available at the CBD diagnostic center, they may be performed at
                another location that is mutually agreed upon by the employer and the
                employee.
                * * * * *
                 (m) * * *
                 (1) * * *
                 (ii) Employers must include beryllium in the hazard communication
                program established to comply with the HCS. Employers must ensure that
                each employee has access to labels on containers of beryllium and to
                safety data sheets, and is trained in accordance with the requirements
                of the HCS (29 CFR 1910.1200) and paragraph (m)(3) of this standard.
                * * * * *
                 (3) * * *
                 (i) For each employee who has, or can reasonably be expected to
                have, airborne exposure to beryllium;
                * * * * *
                 (ii) * * *
                 (A) The health hazards associated with exposure to beryllium,
                including the signs and symptoms of CBD;
                * * * * *
                 (D) Measures employees can take to protect themselves from exposure
                to beryllium;
                * * * * *
                 (iv) The employer must make a copy of this standard and its
                appendices readily available at no cost to each employee and designated
                employee representative(s).
                 (n) * * *
                 (1) * * *
                 (ii) * * *
                 (F) The name and job classification of each employee represented by
                the monitoring, indicating which employees were actually monitored.
                * * * * *
                 (3) * * *
                 (ii) * * *
                 (A) Name and job classification;
                * * * * *
                 (4) * * *
                 (i) At the completion of any training required by this standard,
                the employer must prepare a record that indicates the name and job
                classification of each employee trained, the date the training was
                completed, and the topic of the training.
                * * * * *
                PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
                Subpart Z--Toxic and Hazardous Substances
                0
                3. The authority citation for part 1926, subpart Z, continues to read
                as follows:
                 Authority: 40 U.S.C. 3704; 29 U.S.C. 653, 655, 657; and
                Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
                25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
                2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-
                2010 (75 FR 55355), or 1-2012 (77 FR 3912) as applicable; and 29 CFR
                part 1911.
                 Section 1926.1102 not issued under 29 U.S.C. 655 or 29 CFR part
                1911; also issued under 5 U.S.C. 553.
                0
                4. Amend Sec. 1926.1124 by:
                [[Page 53998]]
                0
                a. In paragraph (b), add a definition for ``Beryllium sensitization''
                in alphabetical order, revise the definitions for ``CBD diagnostic
                center,'' ``Chronic beryllium disease (CBD),'' and ``Confirmed
                positive,'' and remove the definitions of ``Emergency'' and ``High-
                efficiency particulate air (HEPA) filter.''
                0
                b. Revise paragraph (f)(1)(i)(A).
                0
                c. Remove paragraphs (f)(1)(i)(B), (C), (D), (E), and (H).
                0
                d. Redesignate paragraphs (f)(1)(i)(F), (G), and (I) as paragraphs
                (f)(1)(i)(B), (C), and (D).
                0
                e. Remove the period at the end of newly redesignated paragraph
                (f)(1)(i)(D) and add a semicolon in its place.
                0
                f. Add new paragraphs (f)(1)(i)(E) and (F).
                0
                g. Revise paragraphs (f)(1)(ii)(B), (f)(2), and (g)(1)(iii).
                0
                h. Remove paragraph (g)(1)(iv).
                0
                i. Redesignate paragraph (g)(1)(v) as paragraph (g)(1)(iv).
                0
                j. Revise paragraphs (h)(1) and (2) and (h)(3)(ii).
                0
                k. Remove paragraph (h)(3)(iii).
                0
                l. Remove and reserve paragraph (i).
                0
                m. Revise paragraphs (j) and (k)(1)(i)(B).
                0
                n. Remove paragraph (k)(1)(i)(C).
                0
                o. Redesignate paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C).
                0
                p. Revise paragraphs (k)(2)(i)(B), (k)(2)(ii), (k)(3)(ii)(A),
                (k)(4)(i), and (k)(7)(i) introductory text.
                0
                q. Redesignate paragraphs (k)(7)(ii) through (v) as paragraphs
                (k)(7)(iii) through (vi).
                0
                r. Add a new paragraph (k)(7)(ii).
                0
                s. Remove paragraph (m)(2).
                0
                t. Redesignate paragraph (m)(3) as paragraph (m)(2).
                0
                u. Revise newly redesignated paragraphs (m)(2)(i) introductory text and
                (m)(2)(ii)(A).
                0
                v. Remove newly redesignated paragraph (m)(2)(ii)(D).
                0
                w. Further redesignate newly redesignated paragraphs (m)(2)(ii)(E)
                through (I) as paragraphs (m)(2)(ii)(D) through (H).
                0
                x. Revise newly redesignated paragraphs (m)(2)(ii)(D) and (m)(2)(iv)
                and paragraphs (n)(1)(ii)(F), (n)(3)(ii)(A), and (n)(4)(i).
                 The revisions and additions read as follows:
                Sec. 1926.1124 Beryllium.
                * * * * *
                 (b) * * *
                 Beryllium sensitization means a response in the immune system of a
                specific individual who has been exposed to beryllium. There are no
                associated physical or clinical symptoms and no illness or disability
                with beryllium sensitization alone, but the response that occurs
                through beryllium sensitization can enable the immune system to
                recognize and react to beryllium. While not every beryllium-sensitized
                person will develop chronic beryllium disease (CBD), beryllium
                sensitization is essential for development of CBD.
                 CBD diagnostic center means a medical diagnostic center that has a
                pulmonologist or pulmonary specialist on staff and on-site facilities
                to perform a clinical evaluation for the presence of chronic beryllium
                disease (CBD). The CBD diagnostic center must have the capacity to
                perform pulmonary function testing (as outlined by the American
                Thoracic Society criteria), bronchoalveolar lavage (BAL), and
                transbronchial biopsy. The CBD diagnostic center must also have the
                capacity to transfer BAL samples to a laboratory for appropriate
                diagnostic testing within 24 hours. The pulmonologist or pulmonary
                specialist must be able to interpret the biopsy pathology and the BAL
                diagnostic test results.
                 Chronic beryllium disease (CBD) means a chronic granulomatous lung
                disease caused by inhalation of airborne beryllium by an individual who
                is beryllium-sensitized.
                * * * * *
                 Confirmed positive means the person tested has had two abnormal
                BeLPT test results, an abnormal and a borderline test result, or three
                borderline test results from tests conducted within a 3-year period. It
                also means the result of a more reliable and accurate test indicating a
                person has been identified as having beryllium sensitization.
                * * * * *
                 (f) * * *
                 (1) * * *
                 (i) * * *
                 (A) A list of operations and job titles reasonably expected to
                involve exposure to beryllium;
                * * * * *
                 (E) Procedures used to ensure the integrity of each containment
                used to minimize exposures to employees outside the containment; and
                 (F) Procedures for removing, cleaning, and maintaining personal
                protective clothing and equipment in accordance with paragraph (h) of
                this standard.
                 (ii) * * *
                 (B) The employer is notified that an employee is eligible for
                medical removal in accordance with paragraph (l)(1) of this standard,
                referred for evaluation at a CBD diagnostic center, or shows signs or
                symptoms associated with exposure to beryllium; or
                * * * * *
                 (2) Engineering and work practice controls. The employer must use
                engineering and work practice controls to reduce and maintain employee
                airborne exposure to beryllium to or below the TWA PEL and STEL, unless
                the employer can demonstrate that such controls are not feasible.
                Wherever the employer demonstrates that it is not feasible to reduce
                airborne exposure to or below the PELs with engineering and work
                practice controls, the employer must implement and maintain engineering
                and work practice controls to reduce airborne exposure to the lowest
                levels feasible and supplement these controls by using respiratory
                protection in accordance with paragraph (g) of this standard.
                * * * * *
                 (g) * * *
                 (1) * * *
                 (iii) During operations for which an employer has implemented all
                feasible engineering and work practice controls when such controls are
                not sufficient to reduce airborne exposure to or below the TWA PEL or
                STEL; and
                * * * * *
                 (h) * * *
                 (1) Provision and use. Where airborne exposure exceeds, or can
                reasonably be expected to exceed, the TWA PEL or STEL, the employer
                must provide at no cost, and ensure that each employee uses,
                appropriate personal protective clothing and equipment in accordance
                with the written exposure control plan required under paragraph (f)(1)
                of this standard and OSHA's Personal Protective and Life Saving
                Equipment standards for construction (subpart E of this part).
                 (2) Removal of personal protective clothing and equipment. (i) The
                employer must ensure that each employee removes all personal protective
                clothing and equipment required by this standard at the end of the work
                shift or at the completion of all tasks involving beryllium, whichever
                comes first.
                 (ii) The employer must ensure that personal protective clothing and
                equipment required by this standard is not removed in a manner that
                disperses beryllium into the air, and is removed as specified in the
                written exposure control plan required by paragraph (f)(1) of this
                standard.
                 (iii) The employer must ensure that no employee with reasonably
                expected exposure above the TWA PEL or STEL removes personal protective
                clothing and equipment required by this
                [[Page 53999]]
                standard from the workplace unless it has been cleaned in accordance
                with paragraph (h)(3)(ii) of this standard.
                 (3) * * *
                 (ii) The employer must ensure that beryllium is not removed from
                personal protective clothing and equipment required by this standard by
                blowing, shaking, or any other means that disperses beryllium into the
                air.
                * * * * *
                 (j) Housekeeping. (1) When cleaning up dust resulting from
                operations that cause, or can reasonably be expected to cause, airborne
                exposure above the TWA PEL or STEL, the employer must ensure the use of
                methods that minimize the likelihood and level of airborne exposure.
                 (2) The employer must not allow dry sweeping or brushing for
                cleaning up dust resulting from operations that cause, or can
                reasonably be expected to cause, airborne exposure above the TWA PEL or
                STEL unless methods that minimize the likelihood and level of airborne
                exposure are not safe or effective.
                 (3) The employer must not allow the use of compressed air for
                cleaning where the use of compressed air causes, or can reasonably be
                expected to cause, airborne exposure above the TWA PEL or STEL.
                 (4) Where employees use dry sweeping, brushing, or compressed air
                to clean, the employer must provide, and ensure that each employee
                uses, respiratory protection and personal protective clothing and
                equipment in accordance with paragraphs (g) and (h) of this standard.
                 (5) The employer must ensure that cleaning equipment is handled and
                maintained in a manner that minimizes the likelihood and level of
                airborne exposure and the re-entrainment of airborne beryllium in the
                workplace.
                 (k) * * *
                 (1) * * *
                 (i) * * *
                 (B) Who shows signs or symptoms of CBD or other beryllium-related
                health effects; or
                * * * * *
                 (2) * * *
                 (i) * * *
                 (B) An employee meets the criteria of paragraph (k)(1)(i)(B) of
                this standard.
                 (ii) At least every two years thereafter for each employee who
                continues to meet the criteria of paragraph (k)(1)(i)(A), (B), or (C)
                of this standard.
                * * * * *
                 (3) * * *
                 (ii) * * *
                 (A) A medical and work history, with emphasis on past and present
                exposure to beryllium, smoking history, and any history of respiratory
                system dysfunction;
                * * * * *
                 (4) * * *
                 (i) A description of the employee's former and current duties that
                relate to the employee's exposure to beryllium;
                * * * * *
                 (7) * * *
                 (i) The employer must provide an evaluation at no cost to the
                employee at a CBD diagnostic center that is mutually agreed upon by the
                employer and the employee. The evaluation at the CBD diagnostic center
                must be scheduled within 30 days, and must occur within a reasonable
                time, of:
                * * * * *
                 (ii) The evaluation must include any tests deemed appropriate by
                the examining physician at the CBD diagnostic center, such as pulmonary
                function testing (as outlined by the American Thoracic Society
                criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If
                any of the tests deemed appropriate by the examining physician are not
                available at the CBD diagnostic center, they may be performed at
                another location that is mutually agreed upon by the employer and the
                employee.
                * * * * *
                 (m) * * *
                 (2) * * *
                 (i) For each employee who has, or can reasonably be expected to
                have, airborne exposure to beryllium:
                * * * * *
                 (ii) * * *
                 (A) The health hazards associated with exposure to beryllium,
                including the signs and symptoms of CBD;
                * * * * *
                 (D) Measures employees can take to protect themselves from exposure
                to beryllium;
                * * * * *
                 (iv) The employer must make a copy of this standard and its
                appendices readily available at no cost to each employee and designated
                employee representative(s).
                 (n) * * *
                 (1) * * *
                 (ii) * * *
                 (F) The name and job classification of each employee represented by
                the monitoring, indicating which employees were actually monitored.
                * * * * *
                 (3) * * *
                 (ii) * * *
                 (A) Name and job classification;
                * * * * *
                 (4) * * *
                 (i) At the completion of any training required by this standard,
                the employer must prepare a record that indicates the name and job
                classification of each employee trained, the date the training was
                completed, and the topic of the training.
                * * * * *
                [FR Doc. 2020-18017 Filed 8-28-20; 8:45 am]
                BILLING CODE 4510-26-P
                

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